The Patent Process and Patent Protection

They say that creativity is the mother of all invention, and I believe that to be true. They don’t, however, tell you what to do after your creative juices have stopped flowing and your invention has been completed.

They never told you that you should protect your invention by filing for a patent. Patent protection will allow you to market and sell your product while hindering others from legally doing the same.

So how does it work? The first step is to obtain a patent search on your invention. An inventor can do this through in intellectual property law firm or by contacting the United States Patent and Trademark Office (USPTO) directly. The USPTO is located in Alexandria, VA. They can be reached by logging onto www.uspto.gov or by calling them at 1-800-766-9199 or 703-308-4357. Specific questions can also be directed to efs@uspto.gov.

There are three types of searches – a US search, a foreign search, and an around the world search. The US search is the least expensive, and it will only tell you if someone has a patent on your idea in the US. The foreign search will provide that information to you for countries outside of the US, and an around the world search will give you information for both the US and abroad.

If your idea has not been patented, you may proceed to the next step, which is to file for a patent application. An inventor may file through the USPTO’s electronic filing system (EPS) or an IP attorney. IP attorney fees vary and depend upon the firm you go through. An inventor can request that that one of the following types of applications be filed for his or her invention – a utility patent, a design patent, both a utility and design patent, a plant patent or a provisional patent application (PPA) or a Patent Cooperation Treaty (PCT).

A utility patent is for the functionality of your invention, and it has a 20 year life span.

A design patent is for the look of your invention, and it has a 14 year life-span.

An application for both utility and design is possible, but it is also a very expensive application to file.

The USPTO web-site stipulates a Plant Patent can be filed for “a sexually propagated plants are those that are reproduced by means other than from seeds, such as by the rooting of cuttings, by layering, budding, grafting, in-arching, etc.” The life-span for a plant patent is the same as a utility patent.

A PPA may be filed if the inventor wants to receive temporary patent protection but is unsure as to whether he or she wants to continue on with the patent process. A PPA is good for one year, and a patent application must be in process by the end of that time period if the inventor wants to maintain patent protection.

A PCT may be filed by an inventor if he or she wants to obtain patent protection for his or her invention in a foreign country. Guidelines of a specific country must be followed to the letter, and those guidelines can be obtained via an IP attorney or the USPTO web-site.

There is a brief waiting period after the application has been filed. The USPTO will assign a patent examiner to each item filed. The examiner will conduct his or her own search on the invention. If the results of that search stipulate that the invention has not been patented, then the inventor can go to the next step, and the application will be approved.

If record of the invention is on file with the USPTO, the examiner will submit a First, Second or Final Office Action. An inventor has the right to pursue one of three options at this point. He or she can submit an Amendment, file a request for continuing examination (RCE), or file appeal on the invention with the USPTO Board of Patent Appeals and Interferences (BPAI).

An examiner may also stipulate that the invention has utility protection but lacks design protection, or vice-versa. This would provide the inventor with an opportunity to amend the invention and/or the application and re-file.

The inventor will receive notification if an application has approved, and he or she can claim patent pending status on the product. Promotional campaigns and selling transactions may also occur at this point in the process.

The inventor must pay an issue fee in order for the patent pending product officially receives patent protection status, though. The inventor has X months in which to pay the issue fee.

The original patent will then be forwarded onto the inventor after the issue fee has been submitted, and the inventor is free to promote and sell the item without fear that someone else will claim legal rights to it.

If an individual attempts to claim legal rights, promote or sell the product without the inventor’s permission, then the inventor has the right to seek litigation. Such a procedure can be both time consuming and expensive, but it will most likely deter any further infringement.

Since patents have a finite life span, they must be periodically renewed. This is done via the payment of maintenance fees. Three maintenance fees must be paid for both a utility and design patent in order for the inventor to maintain his or her hold on the patent.

An inventor can log onto www.uspto.gov/web/offices/ac/qs/ope/fee2005oct01.htm in order to obtain information on issue fees as well as the following.

  • Patent Search Fees
  • Patent Application Filing Fees
  • Patent Examination Fees
  • Patent Post-Allowance Fees
  • Patent Maintenance Fees
  • Miscellaneous Patent Fees
  • Patent Examination of Time Fees
  • Patent Appeals/Interference Fees
  • Patent Petition Fees
  • Patent Service Fees
  • Patent Enrollment Fees
  • PCT Fees – National Stage and International Stage
  • PCT Fees to WIPO or EPO
  • All finance Service Fees
  • All computer Service Fees

Please note that the fee schedule has changed in the last year, and the Code of Federal Regulations (CFR) may not contain the most current information. An inventor may compare 37 CFR 1.16-1.23 against the web-site. If both schedules are the same, then the CFR is up to date.

If either the issuance or maintenance fees are not paid, then the inventor loses patent protection. Other individuals would be free to file for patent protection on the invention if this occurs.

An inventor additionally has the right to abandon his or her idea at any point of the process. The patent examiner additionally has the right to recommend that the inventor’s idea be abandoned. If either scenario occurs, then the inventor would receive an Abandonment letter. Such a circumstance would also allow an individual to modify and/or pursue patent protection on the invention.

In any case, an inventor should never pursue patent protection on an idea without knowing the process and associated fees involved. He or she should additionally understand the consequences involved in not filing an application, abandoning the process or even telling a friend about an idea that he or she has.

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