Think about some of the amazing inventions that have graced our lives over the years:
- A mystical orange powder that, when combined with water, allows people to travel to the moon. We call it… Tang.
- A mysterious ointment that removes itchy bumps from your buttocks. We call it… Preparation H.
- An intellectual challenge of wit, survival, and backstabbing trickery. We call it… Candyland.
Every invention that you can think of (be it a machine, a toy, a food or even a process) needs a patent. If you don't get a patent, then any random Joe can copy your idea and make money off it. If you get a patent, you're protected: only you can reap the financial rewards and claim the idea to be your own. So if you're a burgeoning Thomas Edison (who, by the way, holds the record for "The Most Patents," numbering over 1,000), then read on and learn how to protect your invention.
We're going to warn you up front though, that this can be a technical and confusing process. So forgive us if this SYW isn't a laugh-a-minute riot; we just want to make sure that you don't screw up, lose out on millions of dollars, and sue us.
1. LEARN WHAT A PATENT IS
A patent is basically a promise by the government to protect certain types of inventions or discoveries and to provide the owner of the patent with the exclusive right to make, use, or sell the patented item. We have patent protection because it encourages people to be creative and inventive. After all, if other people could just rip off your inventions and profit from them as soon as you made them, why would you bother to invent in the first place? But if you can get a patent for your doohickey, you are the only one who can profit from it, unless you sell the patent or a license to use it to someone else. For instance, only Mattel can profit off of the official Barbie Doll, because they have the patent for that product. If another company wants to profit off of Barbie, it either has to get permission from Mattel (not in this lifetime!) or change the invention until it's different enough so that it doesn't legally infringe on Mattel's patent (that is, until it's dissimilar enough so that no one would confuse the invention with Barbie).
Types of patents
The patent statute allows for three types of patents:
- Utility patents cover the sorts of thing most people usually think would be covered by patents. A general invention, machine, process, whatever.
- Design patents protect certain designs in manufacturing or building, based on the unique appearance of the item.
- Plant patents protect certain types of plants (really).
We're only going to discuss the first kind in this SYW, because they're the most common and it's almost certainly the kind you'll want if you are reading this. If you want to patent your new breed of petunia, go find a plant lawyer.
Categories of utility patents
Utility patents cover four types of "inventions":
- Machines. Mechanical devices composed of parts that work together to do something. Machines can be completely new or made up with existing inventions to achieve a new purpose.
- Compositions of Matter. Mixtures of stuff that have cool properties. These include drugs, chemicals or metallic alloys.
- Processes. According to the Supreme Court, processes are "a mode of treatment of certain materials to produce a given result." Hmm, illuminating. Basically, a process is a way to do something.
- Man-made Products. Anything that you can make that isn't a machine or a composition of matter. This last category is just a catch-all for stuff that doesn't fit in the other categories of tangible inventions.
Things you CAN'T patent
- Patent protection is not available for natural processes that you discover, such as the law of gravity, or for mathematical principles. You can patent something that uses natural or mathematical laws (e.g. computer software), but you can't try to preclude other people from using those laws in the future.
- You also can't patent a natural product, even if it takes a lot of work to discover it, as might be the case with a rare medicinal herb.
- Business methods, though arguably processes, have historically not been protected by patents. However, recent case law has signalled a significant shift in this position - if a so-called "business method" otherwise meets the statutory definition of a process, it now may well be patentable. Printed material cannot be protected by a utility patent, even though it is a man-made item.
- Some printed material can be protected by a design patent, but only if the design of the material, and not the written content, is being patented. Enough talk of design patents, though. Just remember that you can't patent natural stuff.
Why patents are good
Utility patents give the patent owner the exclusive right to make, use, or sell the patented item for exactly 20 years from the date of the original patent application. That makes patents quite valuable; for 20 years, nobody can use your invention without you getting some money (for instance, if you invent a wire used by Dell in their computers, they are required to give you a little money from every purchase because they're using your invention).
Understand, though, that your rights in a particular object are "exhausted" (that's the term the courts use to say "given up") when you sell it to someone. So if you patent solar-powered hedge trimmers and sell them to people, they would be allowed to use or sell them. You can also sell licenses to people who want the right to make, use, and/or sell your patented item, and then they would be allowed to exercise whatever rights you had sold them.
2. DETERMINE WHETHER YOUR INVENTION IS PATENTABLE
If you've created something that fits into one of the four categories of utility patents, you're probably just itching to patent it and make some money. But we have some bad news: not everything can be patented. Your invention will have to meet three requirements before it will be accepted: novelty, non-obviousness, and utility. We'll discuss them each in turn.Novelty
Non-obviousness
Utility
Novelty
Your invention must be new and different from anything that has been available to the public before. That means that at the time you're interested in getting the patent, you must be able to answer "No" to all of the following questions:
- Has the invention already been patented? (See step 3 for help in answering this.)
- Has the invention been described in a printed publication?
- Is the invention known to others?
- Was the invention used by others before you invented it?
If you answered "No" to all of these questions, then chances are good your invention is novel. It's okay if other people have thought of the same invention, just so long as they didn't spill the beans to everyone else. You can find out more about the novelty requirement at the website of the U.S. Patent and Trademark Office (USPTO).
Non-obviousness
Your invention must not have been obvious to an expert in the field. There's really not a whole lot to go on here; this requirement is satisfied if the patent examiner decides that it is. This subjectivity makes it difficult to guide you, but here are a few questions you should ask yourself:
- Though your idea is new, would the invention be obvious to someone skilled in that field?
- Does this invention answer some long-felt need?
- Is the item commercially successful? (This can be determined after the inventor has filed a provisional patent application or has patent pending status.)
- Do other people who are skilled in the same area express surprise or admiration for the invention?
- Do a lot of people want to purchase licenses to manufacture the invention?
If you answer "No" to the first question and "Yes" to one or more of the rest of the questions, you're probably on solid footing. See the USPTO's website for more information about non-obviousness.
Utility
This last requirement isn't very stringent, but it can't just be assumed either. Your invention has to be useful for something (even if it's a silly purpose). For instance, you can't get a patent for a process which produces something for which there is literally no use, or a drug which has not been fully tested, or for an invention whose sole purpose is an immoral or illegal one. (For those of you wondering, the Pet Rock was patented because it has two uses: entertainment, and moron-detector.)
Patenting is important, because it allows inventors to make money off of their inventions, and this incentive encourages us to create things or improve sucky things. But as we said above, there are rules about knocking off someone else's product. You can't just take a yo-yo and call it a zo-zo. It has to be different enough so that no one with a brain would think that it was the exact same thing. Finding out if your product is too similar to someone else's is a job for your patent lawyer (which you will eventually need), but you first have to find out if someone else has already thought of your idea and tried to patent it. To do that, you need to conduct a patent search. (And surprise surprise, that's our next step!)
3. PERFORM A PATENT SEARCH
OK, so you have an idea and it meets all of the requirements. So congratulations, you've come up with a great idea! So great, in fact, that there's a possibility that someone has already patented it. A good possibility. A REAL good possibility, because for every idea that you have, 200 other people have probably thought of it already. Hey, we're not your mother; we tell it like it is, and the fact is that it's extremely rare for an inventor's first idea to not have been thought up by someone else already.
But there is a chance that your idea is completely unique. And since you've come this far, you should absolutely give it a try and find out if someone has already filed a patent for the same idea. In other words, you should perform a patent search.
To perform a patent search, visit the USPTO's website, where they offer a free database that includes the names and the front pages of all patents since 1971. The front page includes an abstract that describes the invention, so if you enter search terms that describe both your invention and a previously patented one, your chances of finding it are good. Just go to the database and enter every search term that describes your invention, and see what comes up.
Naturally, people have been patenting things since long before 1971, so if somebody patented your invention prior to that, you won't be able to find it on the Internet. If your invention is something that couldn't have been created prior to 1971 (such a new-fangled video game), you're home free. But if your invention is a special kind of comb or a bowl or something that could have been invented by a caveman, you should check earlier sources. You can find such sources at a Patent and Trademark Depository Library. They will allow you to search their electronic database of every patent ever issued for an hourly rate (this varies from $30 to $80 per hour), or you can search on microfiche readers for free. You can find the nearest library to you by looking through this search data base.
4. APPLY TO THE U.S. PATENT AND TRADEMARK OFFICE (USPTO)
Up until now, we've been talking about your "invention" as if you're sitting there with a gizmo in your hand and you're just waiting to patent it. That might be the case, but we think it's more likely that you just have an idea for a gizmo, and you want to find out how to patent it before you bother to do any work on it. Smart move. Whether you've completed the invention or not, if you already know exactly how it will work, you can then apply for a provisional patent or a regular patent.
Provisional patent application
Regular patent application
Provisional patent application
A provisional patent application allows you to protect your idea from being stolen while you take it around and gauge the interest of investors and manufacturers. You can also file one of these if you don't have the time or money to do a regular patent application but you are concerned that someone else might come up with the same idea.
Important: You must file a regular patent application within one year of filing the provisional patent application, or they throw out the provisional patent and you're just an average schmuck again.
You must include a detailed description with your provisional patent application that tells exactly how to make and use the invention. And when you file your regular patent application, your description must not contain any new technical information that was not in the description submitted with the provisional patent (no fair changing the product midstream). So you have to know exactly what you're doing before you file either application.
To file a provisional patent application, you must submit the following items to the USPTO:
- A cover page.
- A detailed description of the invention that explains how to make and use it.
- Drawings that show how to make and use the invention (and not crayon drawings, but technical drafter's drawings with exact specifications and measurements).
- A $150 fee, unless you wish to send in a declaration that you are a small entity (e.g., a workshop inventor as opposed to Hewlett Packard), which allows you to pay the small entity fee of $75.
To get more information and to download the forms go the USPTO's website. They have specific details that would bore us to tears, so go on over and poke around.
Regular patent application
There are two main parts to the regular patent application: the specification and the claims.
- The specification must be a written description of how to make and use the invention in sufficient detail that a reasonably skilled person in the field could reproduce it from the description. If necessary, drawings or diagrams can be attached. These specifications must be absolutely precise; much more precise than the provisional patent application's.
- The claims are those aspects of the invention that you claim are new and inventive. Once you get a patent, what it protects will be defined by the wording in the claims, so you must be extremely careful and extremely precise when you write the claims. In your claims, you should include everything that you think is unique to your invention and, more importantly, what you want to have rights to make, use, and sell such that you can exclude others from doing so. This is the hardest part of filing a patent, because you must take great legal care or you might accidentally screw yourself over.
As we said with provisional patent applications, you must go to the USPTO's website and get more information and some forms. They provide extremely detailed, step-by-step explanations of how to complete and submit the applications.
We should mention here that you must be scrupulously honest and candid in your application, meaning you can't choose to omit little inconvenient facts here and there. The USPTO imposes a "duty of candor" on all applicants, which means that if they determine that you held back some relevant information when you were applying, they can flat out deny your patent on that ground, or deny you patent protection in later litigation. No fun. No money.
So what's the difference between a provisional and regular patent application?
- A provisional patent is much easier to fill out. Your drawings and descriptions don't have to be quite so legally perfect, and you don't have to fill out the claims, which is the trickiest part of a regular patent application.
- A provisional patent does not really give you a patent. So if someone uses your idea, you have NO recourse. You can't sue or get any money. Until you get a regular patent, all you can do is cry. BUT a provisional patent will protect your patent so that when you do try to get a regular patent, no one can sneak in and take it from you first.
- You can get a provisional patent just by submitting an application. The USPTO will sit on it for a year until you send in a regular patent application. It's not judged on merits; it's just a place-holder. However, to get a regular patent, your application will be assigned to an examiner who determines whether your invention is patentable or not, so quality will matter.
If the examiner decides to give you a patent, you've got it made! If your application is rejected, all is not lost: there are loads of tedious appeals processes where you can complain and beg. You'll be told how to go through the appeals process on the unhappy day you receive your rejection.
5. PROTECT AND EXPLOIT YOUR PATENT RIGHTS
Make money!
Inventors typically make money by selling a license to use their patent to another company that wants to market and sell the goods. So if you invent a new type of doll's clothes, Mattel would pay you to allow them to use those clothes for Barbie's next wardrobe. The license can be paid for in stock, money, royalties, or combinations of these. You should definitely talk to a lawyer about any license agreement you're considering, because if you get a company interested in purchasing a license to your patent and you receive an offer, the terms will be favorable to the company, not to you. You can grant an exclusive license to one company, or you can grant licenses to a number of companies.
You could also start your own company to make, use and market the invention. This is much more difficult; you're an inventor, not a manufacturer! However, if it's really easy to make and market, you can get googobs of money by keeping 100% of the profits to yourself.
Exclude others!
There are lots of nasty people out there who will use your idea without getting your permission (either on purpose or by accident). It is up to you to enforce your patent rights; nobody will be watching out for you. So if you even suspect that someone is making, using, or selling something you've patented without paying you for a license (this is called "patent infringement"), you must tell them to stop immediately. This is another time when it's best to consult a lawyer, because they are really good at telling people to stop doing things.
Patent infringement cases typically don't go to court; the infringer will usually either be talked into paying a license fee or will stop doing whatever they're doing. But if the infringer won't settle, you better take him/her to court. Every single use of your patent should mean money for you, and if someone is using your patent without paying you, you're getting ripped off. So on behalf of Thomas Edison and Benjamin Franklin, and all of the other inventors that have ever innovated, you should take the credit for your brilliance and make sure that others give you due credit too.
Finally, you should realize that you may have an idea for a product, draw up diagrams, and get yourself a patent… but not have the money to actually build the darn thing. Regardless of whether you can make the product or not, the idea is still yours, so the patent is still good. So if you patent an idea, never physically make it, but someone else later makes the exact same product, you're still protected.
Phew! That's the entire process of getting yourself rich off a patent. Yes, it's laborious (as most legal processes are), but it will be well worth the effort when you're counting your money on your newly-patented money-counting machine…
