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BASIC FACTS ABOUT PATENTING
from the U.S. Department of Commerce, Patent and Trademark Office

What is a patent?

A patent is granted by the Government to an inventor to exclude others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States.

There are three types of patents:

1. Utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or compositions of matter, or any new useful improvement thereof.

2. Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture.

3. Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.

Methods of doing business, a mere idea or suggestion, or printed matter cannot be patented.

How long does patent protection last?

Utility and plant patents are granted for a term which begins on the date of the grant and ends 20 years from the date the patent application was first filed. Design patents are granted for a term of 14 years from the date of the grant. A patent holder loses exclusive rights to the invention when the term expires or when periodic maintenance fees are not paid.

Who owns the patent rights?

Patents are granted only to the true inventor, who may sell all or part of his/her interest in the patent application or patent to anyone by a properly worded assignment. Only the true inventor may apply for a patent with the U.S. Patent and Trademark Office.

How do I get a patent?

Inventors should apply in writing to the Commissioner of Patents and Trademarks using one of two types of patent applications:

a nonprovisional application, which begins the examination process that may lead to a patent must include:

1) a specification (a satisfactory description of the invention with at least one claim),
2) a drawing where necessary, and
3) an oath or declaration.

The application must be accompanied by the filing fee required by law.

a provisional application establishes a filing date but does not begin the examination process. It provides the inventor with a one-year period to further develop the invention, determine marketability, acquire funding or capital, or seek licensing agreements. To obtain a patent, the inventor must file a nonprovisional application within 12 months of the filing date of the provisional application. A provisional application must include:

1) a cover sheet identifying the application as a provisional application, the name of the inventor, and other bibliographic data,
2) a partial type of specification (a satisfactory description without claims), and
3) a drawing where necessary.

The application must be accompanied by the filing fee required by law.

Both types of patents are held in confidence and may be used to apply for either a utility or plant patent. An application for a design patent must be filed as a nonprovisional application.

The terms "patent pending" or "patent applied for" may be used by a manufacturer or seller of an article to inform the public that a pending provisional or nonprovisional application for that article is on file. The law imposes a fine on those who use these terms falsely. A valid patent may not be obtained if the invention was in public use or on sale in this country for more than one year prior to the filing of a patent application. Your own use and sale of the invention for more than a year before the application is filed will also bar the right to a patent.

For an inventor, claims are the most important part of a nonprovisional application, because they are used to judge the patentability of an invention. A concisely written claim describes an invention without unnecessary details and recites all essential features necessary to distinguish the new invention from what is old. Claims continue to be important once a patent is granted, because questions of infringement are judged by the courts on the basis of claims.