When most people talk about patents, the first type that probably comes to mind is a utility patent. A utility patent is granted to anyone who invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof. 35 U.S.C. § 101. In order to be considered patentable subject matter, the invention must be novel, nonobvious, and provide a utility. The question of novelty essentially asks whether the exact invention has already been discovered (either by someone else or the inventor themselves). The question of obviousness generally asks whether the capabilities of other, similar inventions could be combined to create the applied-for invention. The question of utility asks whether it provides a benefit and is capable of use. Ultimately, the resulting patent is a property right which gives the patent holder the right, for a period of time (20 years measured from the earliest filing date in the U.S.), to exclude others from making, using, offering for sale, selling, or importing into the United States, the subject matter claimed in the patent.
However, the government does not just hand out these exclusive property rights. A utility patent application must be filed with the U.S. Patent and Trademark Office (PTO), where it is searched and examined thoroughly to determine whether a patent should be issued. The application, much like the application process, includes several components. The application will typically include a detailed specification describing the invention (often including drawings) and at least one claim intending to set forth the “metes and bounds” of an applicant’s rights. Other possible application components include an inventor(s) oath or declaration, an assignment, and the prescribed filing, search and examination government fees. A properly written specification and claim(s) are critical to ensuring a quality patent.
As to the application process, once received by the PTO the application goes through a search and examination process where the Patent Office determines the patentability of the invention set forth in the claim(s). Through this process, the claims in the application, or any portion thereof, are either deemed allowed or rejected based on prior art cited by the PTO. An applicant can walk away, make changes to the claims, or present arguments to the PTO in support of patentability. Typically, the process takes about three years to get an issued patent but can take even longer in some of the more crowded technical areas.
Even after a patent is issued by the PTO, there are periodic maintenance fees which must be paid to the government to maintain the patent rights. Those fees are due at 4 years, 8 years and 12 years after issuance. Non-payment of any of these fees will result in the termination of patent rights.
The materials available on this website are for general informational purposes only and do not constitute legal advice. Use of and access to this website or any of the links contained within the site shall not be construed as an offer to represent you, nor is it intended to create, nor shall the receipt of such information constitute, an attorney-client relationship between Bishop Diehl & Lee, Ltd. and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of any of their clients, the firm, or any individual attorney. This website may contain links to other third-party websites. Such links are for the convenience of the user or browser only and should not be interpreted as an endorsement of the contents on such third-party sites.