Patent Law: How do I Secure a Patent?
An
inventor in the United States may pursue a patent for his or
her invention by filing a patent application with the Patent
and Trademark Office (PTO). This application includes a
precise and detailed description of the invention, a
description of the conception and development of the
invention, detailed drawings of the invention, and one or
more claims as to what useful function(s) the invention
performs. The applicant must also tell the PTO any
information relevant to the issue of patentability,
including facts that weigh against issuing a patent. There
are fees associated with the patent application. The
application is then reviewed by a patent examiner in the PTO
who has experience with the subject matter of the invention.
It may take two years or more for the patent office to rule
on the application. While the application is pending, a
patent applicant may seek to amend the application or to
disclaim a part of it if that part could prevent the patent
from being granted.
Patent Application Process
Securing a patent is critical for an inventor wishing to
protect his or her right to benefit financially from an
invention. The purpose of the patent system is to serve the
public interest by encouraging inventors to develop new and
useful things and processes, and to ensure public use of the
inventions after the patent has expired. A patent
application must be prepared with care and precision because
it serves the public in at least two ways: it allows the
public to use, or "practice," the invention once the patent
has expired; it also gives other inventors notice as to
which things are, and are not, subject to patent protection.
Patent protection is secured through the filing of an
application with the Patent and Trademark Office. There are
five basic types of patent applications. These include
original, continuation, continuation-in-part, divisional,
and provisional applications. An original application, as
the name implies, is not based on or tied to any other
patent applications before the patent office. A continuation
application, by contrast, is based on an existing
application, and has many identical components. It is
typically used to modify the prior application when
processing has been held up. Continuation-in-part
applications include additional subject matter and are
generally used to protect improvements to the original
invention. Divisional applications arise when the patent
office determines that the patent application covers more
than one invention. Finally, provisional applications are
preliminary in nature and are used to secure an earlier
filing date for an invention.
Under
the federal statute governing patents, a patent application
must contain a specification, a drawing of the invention, an
oath by the applicant stating that the inventor believes her
or she is the first inventor of the item, and a filing fee.
The specification is the bulk of the application and
contains numerous parts concerning the invention. These
parts typically include the application's title,
cross-references to related applications, the field or
subject area of the invention, background on the "art" of
the invention, a summary of the invention, description of
accompanying drawings, description of preferred embodiments,
claims, and an abstract. Each of these parts should be
completed with care, as omissions or errors anywhere in the
application can lead to rejection or a limitation of the
patent.
The
parts of the specification serve various purposes. The title
of the invention is the patent examiner's or reviewing
court's first clue as to what the invention is or does.
Thus, it should be carefully crafted to match the intentions
of the inventor. Cross-references put the patent office on
notice that this application is closely related to another
pending before it, as in the case of continuation,
continuation-in-part, and divisional applications. The field
of the invention concerns the technical field in which the
invention is to be used. The patent examiner will use this
information
in determining whether the invention meets the requirements
of novelty (the invention has not been made before) and
nonobviousness (the invention is not an obvious
development). Related to this is the background of the art,
or background art, section, in which the applicant explains
to the patent examiner the problem the invention solves or
the process the invention improves. In the summary, the
applicant describes the features and advantages of the
invention. These features and advantages should relate to
the problems or inadequacies addressed in the background art
section. The summary must also show that the invention has
been "reduced to practice," that is, utilized for its
intended purpose. In order to be patentable, the invention
must work; its abilities and functions cannot be
speculative. Additionally, the vast majority of patent
applications will include drawing(s) of the invention. The
application should include a brief description of the
drawing(s), including the perspective of the viewer
observing the drawing.
Because the public will have use of the invention after the
20-year period of the patent has expired, the application
must make clear how the invention is to be made and used.
This information comes in the description of the preferred
embodiments. Here the applicant describes the materials and
parts used to make the invention and the precise manner of
using it. This section will make frequent referrals to the
illustrations and drawings included with the application.
The
last major section of the specification is the claims. This
section helps the courts and the patent office to determine
whether the invention is patentable and what the patent
protects. In the claims section, the applicant sets forth in
explicit detail the structure of the invention and what it
does. Each claim is typically written as a single run-on
sentence. The claims section must be carefully drafted so
that it describes no more and no less than what the
invention is and does. If the claim is too broad, it may be
rejected by the patent office. If it is too narrow, it will
fail to protect the full rights of the inventor.
The
final piece of the specification section is an abstract,
which is a single paragraph summarizing the invention. The
abstract emphasizes the invention's novel features, and
appears on the first page of the patent once it is issued.
Application fees vary based on the type of application and
the size of the entity pursuing the patent.
Patents are valuable property rights and a cornerstone of
the national, and international, economy. Inventors in the
U.S.
have the right under the Constitution and federal statutes
to protect their inventions from infringement for a term, in
most instances, of 20 years. This right, however, is only
created if the inventor secures a patent for his or her
invention. An invention must meet statutory requirements to
qualify for patent protection. But even for inventions that
do qualify, the protection is only as good as the patent
itself. The inventor must have his or her application
approved, and the application must lead to a patent that
provides the fullest protections to the inventor's creation.
As science and technology continue to advance and grow more
complex, so too will the patent process. Proper preparation
of a patent application requires careful drafting to ensure
success. Individuals hoping to protect their inventions are
well advised to consult with an experienced patent law
attorney. Because the right to pursue a patent expires if an
inventor does not file within one year of publicly showing,
using, or selling the invention, inventors who have done any
of these things should seek legal assistance promptly.
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