Why You Want a Patent
When you take an idea and create something useful from it, something nobody else has thought of, it's only natural to want to profit from it. Patent protection gives you first shot at doing that.
A patent gives you the right to stop everyone else from using, making or selling your invention for the term of the patent. You get to decide how your invention gets to market. You can do it all yourself, or you can enlist help and let another company make and/or sell it in exchange for a portion of the profits.
What You Can Patent
You can't patent every idea you have, in fact you can't patent ideas at all. What you can patent is a unique way to use your idea. You can patent things like medical devices, drugs, chemical processes, and computer software. You cannot patent a naturally occurring substance, even if you just discovered it, or something that does not have a legal purpose.
Depending on what you have invented, you can apply for one of three types of patents:
- Utility patents cover new processes, machines or chemicals, or significant improvements to existing ones. They are the most common kind of patent.
- Design patents cover the unique appearance of a product, independent of its function.
- Plant patents protect new and distinct plants that are asexually reproducible.
In order to be patentable, your invention needs to fall into one of the above categories and must also be:
- Novel: It needs to be different from similar products in at least one part of its design or function.
- Non-obvious: It should be something that experts in the field would consider unexpected.
- Useful: It must have a beneficial purpose and must operate as intended.
How to Get a Patent
Patent law is complex, so you will probably need a patent lawyer to help you. Patent lawyers have passed a separate exam in order to practice in this area of law.
First, you will have to make sure someone else has not already patented a substantially similar invention. Then you file your application, showing that your invention is actually new and unique, with the U.S. Patent and Trademark Office (USPTO) and pay the application fee.
A patent examiner will review your application and either approve or reject it. You can appeal if it is rejected. If approved, the USPTO publishes a description of your invention and is purpose.
If you get a utility or plant patent, it is good for twenty years from the date you filed your application, but you will need to pay maintenance fees every few years on a utility patent to prevent it from expiring sooner. A design patent expires after fourteen years. Once your patent expires, your invention is public property and you can no longer prevent others from using it.
You have to be careful about how you discuss your invention before filing a patent application, because you have to file within one year of making information about it public. In 1995, the USPTO began offering something called a provisional patent, which protects you for 12 months, making it easier to talk with potential partners or investors without risking making your invention unpatentable. You do need to file for a full patent before your provisional patent expires.
Profiting From a Patent
Having a patentable invention doesn't guarantee you'll make money from it. Unless you intend to license your invention to another person or company in exchange for a licensing fee and royalty payments, you'll want to start a company that can make, market and sell your product. You'll need to:
- Do market research, to be sure people will actually want your product
- Write a business plan
- Secure financing so that you can afford to make and market your product
You can find help in many places, including local chambers of commerce, industrial development organizations and state departments of commerce and industry.
Protecting Your Patent
While a patent gives you the right to prevent anyone else from profiting in any way from your invention, you are responsible for enforcing this right. If someone infringes on your patent, get a patent attorney to help you either file a lawsuit or reach a settlement. A lawsuit can be very time-consuming and expensive, but if your invention is truly valuable, it can be worth the effort. If you win a suit, you may receive court costs, attorney's fees and damages (usually equal to reasonable royalty). The courts will also issue an order (called an injunction) preventing the other person from continuing to infringe on your patent.
Keep in mind that patent infringement works both ways. You must also be careful not to infringe on other people's patents, or you could find yourself the defendant in a lawsuit.