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Tech startups often put a lot of time and resources into developing new and novel technology — and typically hope they can benefit from being the only one to offer that technology. Many of my clients are unaware of the importance of patenting their ideas for various reasons. This can lead to financial loss and the possible loss of ownership of their invention.
A patent is a type of intellectual property right granted for an invention and is meant to encourage innovation. They serve the public interest by incentivizing investment in technology because patent owners get exclusive rights for a period of time. It also encourages inventors to disclose their inventions.
Patents offer an extra layer of innovation protection. Patent owners have exclusive rights to make, sell, offer, or import the invention for a designated period. In other words, it gives you a monopoly on the sale and use of the invention for some time. This has enormous economic value.
What can be patented?
The United States Patent and Trademark Office (USPTO), the government arm that serves as the national patent office and trademark registration authority for the United States, defines patentable subject matter as the invention or discovery of “any new and useful process, machine, manufacture , or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.”
Patented material must be novel and non-obvious. Novel means the invention must be new, unknown and not used by others, while non-obvious pertains to the fact that the variation or subject matter of your invention isn’t obvious. However, abstract ideas, laws of nature and natural phenomena are examples of subject matter that are not eligible for patenting.
How to get patent protection
You must register with the USPTO. Any patent application must include the following:
- a specification (the claim or claims describing the invention)
- drawings (depending on the application)
- declaration of the inventor(s)
You may also need to file an information disclosure statement containing any prior art, materials or literature that is helpful to the patent examiner. A patent examiner’s job is to challenge some aspects of the patent by examining applications to determine whether or not a patent should be granted. The process of securing approval and issuance of a patent can generally be expected to take about two years.
Types of patents
You can apply for and receive three types of patents: utility, design and plant.
Utility patents protect functional characteristics or features of a new and useful process, machine, manufacture or composition. Innovations for utility patents include the lightbulb, the 3D printer and Google PageRank.
Design patents protect new, original and ornamental designs of manufactured articles. Examples include the Statue of Liberty and the designs of the curvy Coca-Cola bottle and Oakley sunglasses.
Plant patents protect new plant varieties, like types of flowers and fruit trees.
Related: Why File Design Patents? Modern Uses of a Classic Form of Intellectual Property.
Interplay between patents and other types of intellectual property
There is often interplay between patents and other types of intellectual property, like trademarks. For example, the same product can be covered by both a design patent and a utility patent, with the design patent covering the nonfunctional characteristics and the utility patent covering the functional characteristics. There can also be an interplay between design patents and trade dress, a type of trademark right that protects the visual appearance of a product or its packaging design. This can even include the shape of a building.
The interplay between design patents and trade dress occurs because both protect nonfunctional characteristics; however, challenges may arise when getting a dress versus a design patent. Design patents are also granted for a limited time, while trade dress provides protection as long as the trade dress is used in commerce.
It’s important to remember that design patent protection can be secured to protect the design during which you try to obtain trade dress protection.
How long do patents last?
Depending on the type of patent, the length of protection varies. Utility patents are good for 17 years from the issue date and 20 years from the filing date. Design patents expire 15 years from the date of application, and plant patents expire 20 years from the issue date. Once a patent expires, anyone can make, distribute, sell or import the products without the patent owner’s permission.
Related: Using Someone Else’s Intellectual Property Comes At a Price
Patent infringement occurs when someone tries to make, use or sell something that contains every element of the patented material. However, it is important to note that the patent must be in effect to prove infringement.
Once you discover someone is infringing on your patent, ask your attorney to send a detailed cease and desist letter. It’s often worth offering to get the infringer to license your patent, as this can be a great way to profit from your original investment. If that doesn’t work, you can sue the infringer in federal court, which can result in an injunction against the infringer; receiving a judgment for the loss or royalties of profits that were received by the infringer; and a judgment of potential treble damages and attorneys’ fees. These damages can be impacted if you delay bringing an infringement action.
Remember: A patent is of limited use if you don’t enforce it.
Limitations and considerations
There are some things to consider when applying for a patent. For example, your patent application must be filed one year after the first offer to sell your invention or the first public use and disclosure of the invention. If those items apply to you, you will not be eligible to register and receive patent protection. This is called an on-sale bar limitation.
Filing for a patent can also be expensive, costing upwards of thousands of dollars. Filing requires working with an attorney who is licensed before the USPTO.
Protecting patent rights is particularly expensive. Patent litigation is a seven-figure endeavor. It is also important to perform a patent clearance search to ensure that you are not infringing on other patents. This can cost as low as $1,500 for basic searches and as much as $12,000 for complex searches. Due diligence is key. In fact, 88.6% of people applying for patent protection are rejected each year due to a similar invention that’s already on the market or because someone has already patented an invention similar to yours.
Bottom Line: Patents are a great way to protect your and your business’s intellectual property.
Related: Launching a Website? Here Are 5 Common Intellectual Property Pitfalls to Avoid.