Have you realized your dream of creating something new?
Many children dream of growing up to become inventors. For those who realize the dream, creating an invention is the first big hurdle一 a goal that may take years to reach and considerable resource investments to realize.
Patents provide a way to protect the hard work you’ve put into your inventions. An experienced Los Angeles patent attorney can help you navigate the patent process and secure the protection your invention requires.
What is a Patent?
A patent is a type of intellectual property right that protects the novel elements of an invention.
A patent gives its holder the right to exclude others from making, using, selling, or importing the invention that is the subject of the patent.
Patent protection is limited to the territory that grants the patent. Patents issued by the United States Patent and Trademark Office (USPTO), for instance, apply only within the jurisdiction of the United States. No single patent can offer worldwide protection.
In addition to being limited by geography, patents are also limited by time. A patent expires after a certain period. The exact duration of the patent depends on the type of patent.
In exchange for these protections, the applicant for a patent discloses the details of their invention: How it’s made and how it works.
This information becomes part of the public record. While others cannot use it to copy the invention during the patent protection period, they can reference this information to further their own understanding of inventions in the field.
Patents benefit both inventors and the general public. The public benefits from patent law’s encouragement of invention and the access it grants to new information. Inventors benefit from patents by leveraging their protection to gain entry to a market, exclude competitors, and market their products. Patents can also be sold or licensed like other forms of property.
What Kind of Items Require a Patent?
Under US patent law, patents apply to “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” To qualify, an invention must be both “new” and “useful.”
“New” inventions are also said to have “novelty.” These are inventions that are not “anticipated,” meaning that some element of the invention doesn’t exist in single prior references.
For example, a mobile phone constructed entirely of mobile phone parts that exist in prior-filed patents would fail the “anticipated” test. This phone does nothing new itself – it merely remixes existing inventions. Such a phone would also fail the “non-obvious” test, as it is merely an “obvious modification” of prior mobile phone parts.
A device that incorporates mobile phone parts to work as a scanning device similar to a Star Trek tricorder, however, may qualify for patent protection, as nothing like this device currently exists, and its use of existing patented items is non-obvious.
US patent law identifies five primary requirements. To receive a patent, an invention must demonstrate:
Patentable subject matter
The invention must be the type of thing that can receive a patent.
The invention must be useful.
The invention isn’t known or used by others in the US or patented previously.
The invention was not “obvious” to a person of ordinary skill in the field when it was invented.
The specification makes it possible for someone reading the patent to understand the invention, including how it works and what it is best used for.
Who may apply for a patent?
Under US patent law, anyone may apply for a patent – except for officers and employees of the USPTO, who are barred from filing patent applications during their tenure with the agency and for one year after. For non-officers or employees of the USPTO, anyone may file a patent as long as they demonstrate a “sufficient proprietary interest” in the invention.
Because different items require different types of patent protection, the USPTO recognizes three different patent types.
Utility patents protect how an invention works. These patents may apply both to items and to processes. For example, a utility patent protects items like handheld gaming systems, clothing fasteners, chemical compounds, and processes such as the manipulation of genetic traits in certain species. Utility patents also protect “new and useful” improvements to these items.
Many ordinary household items contain several different patented components. In a mobile phone, for example, the data-processing methods, semiconductor circuits, batteries, antenna, and various chemical compounds or alloys used in manufacturing may all reside under separate patents.
A utility patent’s protection begins on the date of filing a regular patent application. It ends 20 years after the filing date.
Design patents protect “ornamental” or non-functional designs. The unique shape, configuration, or design of an item may qualify for protection under a design patent. These patents protect both unique shapes, like the shape of a soda bottle, and surface ornamentation, such as finishes applied to the item. The design must be both described and shown in the patent application.
Design patents protect designs as applied to an article of manufacture. In this way, a design patent differs from copyright protection, which protects an expressive work fixed in a tangible medium of expression.
A design patent’s protection lasts for 14 years from the date the design patent is granted.
Plant patents apply to new varieties of asexually reproduced plants. These patents are often used to protect the results of genetic engineering and other approaches to plant development.
A plant patent is valid for 20 years, beginning on the date the application is filed.
Navigating the US Patent and Trademark Office (USPTO) Process
Acquiring a patent can be challenging. The process requires an understanding of both the federal laws governing patents, found in Section 35 of the U.S. Code, and the regulatory requirements for patents, found in Section 37 of the Code of Federal Regulations. Case law also affects how these laws are interpreted.
35 USC 112(a) contains basic requirements for a patent application. This law states that a patent specification must contain:
- A written description of the invention,
- A description of the “manner and process” of making and using the invention,
- The “best mode” the inventor sees for executing the invention.
These descriptions must be made “in such full, clear, concise, and exact terms as to enable any person skilled” in similar topics or fields “to make and use the same.” The specification must end with one or more statements, or “claims,” that identify and claim the invention.
Claims play an essential role in patent protection. The protection of a patent is limited to what is stated in the claims.
The importance of claims
Multiple claims may be made in one patent application, but only allowed claims are afforded protection. Consequently, much of the patent prosecution process focuses on the claims.
During prosecution, the patent examiner assigned to the patent searches existing claims and examines the claims made in the application. The examiner will work with the applicant to focus the claims on the novel aspects of the invention. The claims may be allowed, amended, or rejected during this process.
While the claims play a vital role in the application, other items must also be included for the application to be accepted as complete. These include required forms, an application data sheet, a complete specification, any necessary drawings, and an executed oath or declaration. An experienced patent attorney can help you ensure all necessary elements are included in the patent application.
My Creation Doesn’t Seem to Fall Under Patent Law. Can I Still Protect It?
Patents are one type of intellectual property protection. While patents cover a wide range of inventions, they do not cover all creative or intellectual works. Other available avenues of intellectual property protection include trademark and copyright law.
For some inventions, distinguishing between features that require patent protection and those that require trademark or copyright protection is simple. For others, this distinction can prove challenging – especially in the realm of design patents, which often address distinctive aesthetic elements that may be seen as creative, expressive, or indicative of branding. Talk to an experienced IP law attorney to learn more about which types of intellectual property protection best apply in your situation.
Trademark protection applies to those items used to communicate the identity of a particular brand.
Trademarks are used to distinguish a product or service from its competitors, communicating quickly to audiences that a product or service is the work of a particular company. Logos, colors, fonts, names, and even sounds can all fall under trademark law.
Copyright protection applies to any creative or expressive work “fixed in a tangible medium of expression.”
Written works, musical compositions, and art pieces are the most commonly recognized items that fall under copyright law, but other creative or expressive works can fall under copyright law.
Trademark & Copyright protections
In the US, trademark applications are also managed by the USPTO. Trademark protection does not apply until an application is granted. Protection for any copyrightable elements in a logo or other trade item, however, may be available.
Copyright protection attaches as soon as a work is fixed in a tangible medium. Registering a copyright with the US Copyright Office, however, grants access to certain additional protections, such as the right to sue for statutory damages in addition to actual damages if a copyright is infringed.
Protect Your Work
Speak to an Experienced Los Angeles Intellectual Property Attorney Today
Once you have your invention in hand, you may believe the hardest part of inventing is over. While you’ve succeeded in realizing your ideas, you must now face the challenge of securing patent protection for your hard work.
If you’re seeking a patent, the team at CohenIP can help. During your initial consultation, we will discuss the types of available patent applications and which offer the best fit for your situation. We’ll also answer your questions and provide information that can help you take the next step in your invention journey. Contact us today to schedule a free, confidential consultation.
CohenIP seeks to help inventors secure the patents they need. Our patent services include:
- Patent Applications
- Patent Searches
- International Patents
- Track One Patent Examination
- Patent Office Actions
- Design Patents
- Patent Licensing
- Patent Litigation
Navigating patent law can prove challenging. Patent law and the patent process are complex, and they constantly challenge you not only to know your own invention but also the details of the law and related sciences and practices.