Each type of patent provides a different kind of protection.
Types of Patents
Utility Patent
Utility patents protect the functional aspects of an invention—how it works, how it is made, and how it is used. This form of patent protection covers machines, processes, articles of manufacture, and compositions of matter, as well as new and useful improvements to any of these categories.
Design Patent
Design patents protect the ornamental and non-functional visual aspects of a product, including its overall appearance, shape, configuration, and surface ornamentation. This form of protection is limited to the way an article looks, rather than how it functions, and applies only to the design as shown and claimed in the patent drawings.
Plant Patent
Plant patents protect new and distinct varieties of plants that are invented or discovered and asexually reproduced. This form of patent protection covers a single plant or plant variety and extends to plants that are capable of being reproduced through methods such as grafting, cuttings, or tissue culture, provided the plant is not a tuber-propagated plant or found in an uncultivated state.
The legal requirements for a patent are:
Patent Legal Requirements
Utility
A patented invention must have utility, meaning that it must be functional, provide some identifiable benefit, and work according to its intended legal purpose.
Non-Obvious
A patented invention must be non-obvious, meaning that it is sufficiently different so that a person with ordinary skills in the art would not find it obvious at the time of the invention.
Novelty
A patented invention must be novel, meaning that it is new and was not the subject of public disclosure by the applicant more than a year before its priority date.
Patentable Subject Matter
A patented invention must claim patentable subject matter, which includes any new and useful process, machine, manufacture, or composition of matter or any new and useful improvement thereof. Patentable subject matter does not include laws of nature, natural phenomena, or abstract ideas.
Patent Applications
As a legal requirement, a patent application must describe the invention in sufficient detail to enable a person of ordinary skill in the relevant field to make and use the invention without undue experimentation. In addition, the application must demonstrate that the inventor or inventors were in possession of the claimed invention at the time of filing, as evidenced by a clear and complete disclosure of the invention’s features, embodiments, and scope.
A patent application includes the following sections:
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Title
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Cross References to Related Applications
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Summary
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Brief Description of the Drawings
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Drawings
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Specification that is a detailed description of the invention
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Claims that define the scope of the claimed invention
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Abstract
Patent Enforcement
Patent infringement occurs when a party makes, uses, sells, offers for sale, or imports a patented invention within the United States without authorization from the patent owner during the term of the patent. If infringement is suspected, the patent owner has the right to enforce their patent through civil action in federal court.
As an initial step, a patent owner may send a cease-and-desist letter to the alleged infringer. This letter asserts the patent rights in question and demands that the infringing activity cease. It may also request a financial accounting or propose licensing or settlement discussions. A key purpose of a cease-and-desist letter is to initiate a dialogue between the parties and explore potential resolutions without resorting to litigation.
If negotiations are unsuccessful, the patent owner may file a patent infringement lawsuit in federal court, seeking remedies such as injunctive relief and monetary damages. Conversely, in response to a cease-and-desist letter or any threat of enforcement, the accused party may file a declaratory judgment action in federal court to obtain a judicial determination of non-infringement, invalidity, or unenforceability of the asserted patent.
Patent Appeal
An applicant may appeal an examiner's final office action before the Patent Trial and Appeal Board (PTAB).
An appeal involves the following stages:
1.
Pre-Appeal Brief Review
Before submitting a formal appeal brief, an applicant may request a pre-appeal brief review by a panel of examiners to assess the pending rejections.
2.
The applicant must file a notice of appeal and the corresponding fee to initiate the appeal process before the PTAB.
Notice of Appeal
3.
An appeal brief that clearly articulates the errors in the examiner's rejection and presents arguments and evidence to support the invention's patentability is filed with the PTAB.
Appeal Brief
4.
The examiner may issue an examiner's answer addressing the arguments presented in the appeal brief. The applicant may file an answer to the examiner’s answer.
Examiner’s Answer
5.
Applicants may request an oral hearing before the PTAB to present their arguments in person.
Oral Hearing
6.
After reviewing the parties’ written briefs and, if requested, conducting an oral hearing, the Patent Trial and Appeal Board (PTAB) issues a written decision. The decision may reverse the examiner’s rejection, affirm one or more rejections, or remand the application to the examiner with specific instructions for further examination.
PTAB Decision
7.
If the Patent Trial and Appeal Board (PTAB) upholds the pending rejections, the applicant has several options for further review. They may request a rehearing before the PTAB, seek Director Review of the PTAB decision, or file an appeal with the United States Court of Appeals for the Federal Circuit. These actions must be taken in accordance with the relevant statutory and procedural requirements.
Post PTAB Decision
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Foreign Filings and PCT Applications
A corresponding foreign patent application may be filed within one year of the U.S. patent application filing, claiming priority to the earlier U.S. patent application filing date. Instead of filing separate applications in various foreign territories, a single Patent Cooperation Treaty (PCT) application may be filed through the World Intellectual Property Organization (WIPO). The single PCT application will be forwarded to multiple participating foreign territories along with the results of an initial search of the application.
Prosecution of a PCT application includes the following stages:
1.
Filing
A PCT application is filed in a receiving office (RO)(e.g., USPTO) within 12 months of the filing date of a corresponding application. The filed PCT application includes a designated International Searching Authority (ISA) to conduct an initial search.
2.
The ISA issues an international search report (ISR) listing relevant prior art that may affect patentability.
Issuance of International Search Report
3.
WIPO publishes the PCT application and the ISR approximately 18 months after the priority date of the PCT application.
Publication
4.
A supplementary international search and an international preliminary examination of the PCT application may be requested.
Supplemental Search and Examination Request
5.
The PCT application enters a national phase in each participating foreign territory where the applicant seeks patent protection within approximately 30 months of the application’s priority date.
National Phase
Patents
Patents confer on their owners the exclusive legal right, for a limited period of time and within a defined jurisdiction, to prevent others from making, using, selling, offering for sale, or importing an invention as set forth in the patent’s claims. In practice, this exclusivity allows patent owners to protect innovations from direct competition, control how the patented technology is commercialized, and strategically manage market entry by others. As a result, patents are commonly treated as valuable business assets, providing mechanisms for market differentiation, licensing and royalty revenue, cross-licensing opportunities, and leverage in partnerships, financing, and venture capital transactions.
79.2%
Current allowance rate of utility, plant, and reissue patent applications w/o RCE
83.0%
Current allowance rate of design patent applications
How TCP Law Can Help
A patent attorney at TCP Law can help you prepare, file, and prosecute a patent application for your invention. A typical patent filing engagement will include the following steps:
(a) Providing you with a patent disclosure form to complete,
(b) Conducting a patent search,
(c) Performing one or more inventor interviews,
(d) Drafting and updating a set of claims,
(e) Drafting a full specification, incorporating your feedback through multiple revisions, and
(f) Preparing and filing the finalized patent application with the USPTO.
If you have any questions regarding general patent issues or want to discuss your specific patent matter, please contact me at john@tcplawfirm.com or at 917-612-1059.
Patent Prosecution
A patent application is prosecuted before the USPTO.
Patent prosecution involves the following stages:
1.
Filing
A provisional or non-provisional patent application is filed with the USPTO. The non-provisional application will undergo examination by the USPTO. The provisional application provides a priority date for a later filed corresponding non-provisional application.
2.
The filed application is reviewed to ensure it meets the necessary formalities. A non-provisional patent application is assigned to a technical group within the USPTO.
Review
3.
The non-provisional patent application is assigned to a patent examiner within the technical group. The examiner will search and determine the patentability of the claimed invention.
Search
4.
Based on his review and search results, the examiner may issue one or more office actions outlining objections and rejections of the claimed invention. The applicant must file a response outlining arguments and amendments to overcome each objection and rejection.
Office Actions
5.
A notice of allowance will be issued if the invention is determined to be patentable.
Allowance
6.
A patent is granted once an issue fee is paid.