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What is a Patent?
May 19, 2020 Introduction to Patents

What is a Patent?

 

Patents are one of the most common and powerful forms of protection for intellectual property. A patent is an exclusive government authority granting an inventor the right to exclude others from making, using, or selling their invention. This allows the inventor to protect their intellectual property and defend themselves against anyone who infringes on their intellectual property. Anyone can file a patent application regardless of their age or geographic location as long as they have true ownership or inventor stake in the invention. It is important to note that all inventors must be credited in the patent application to avoid serious problems in the future. Therefore, the only true requirement for filing a patent application is a contribution to the invention(s) that will be patented. There are several different types of patents:

  • Provisional
  • Utility (a.k.a. Non-Provisional)
  • Design
  • Plant
  • PCT/International

 

Each type of patent provides its owner with a unique right to protect themself against various types of intellectual property infringement. It is important to make sure that you understand the differences between each patent before you decide to file a patent application. However, if you are going to file a single patent application, it is always best to file a Utility (a.k.a. Non-provisional) patent application. Utility patents are the most common and most powerful patent available through the USPTO. Patents documents are made up of several different sections of content. Most patents include an abstract, drawing(s), specification, and claim(s). Each of these components is important, but each serves a different function.

Abstract
  • A short summary of the invention 
  • Used to give readers a basic understanding of the invention(s) being patented 
Drawings
  • Annotated black line drawings of the invention
  • Used to help anyone interpreting the patent to understand the intended structure, assembly, and use of the invention
  • An opportunity to provide a visual representation of the invention 
Specification
  • Disclosures of all of the specific details of the invention 
  • Used to ensure the intended intellectual property is not misunderstood or limited by any future interpreters 
  • An opportunity to document every important detail associated with the invention
Claims
  • Sentence fragments that clearly identify the invention, its structure, and functionality
  • Used to define what is being patented and the scope of the patent rights
  • The only section of a patent that will be directly interpreted by a patent examiner to determine patentability

 

 

How Do Patents Work?

 

Patents are a very effective and popular method of protecting intellectual property. However, patents can be complex and confusing to anyone who is not familiar with how they work. There are two factors that are most important for understanding how patents work. 

  1. 1. How does a patent protect your intellectual property?
  2. 2. How does an invention earn a patent?
How does a patent protect intellectual property?

A patent application is used to clearly define an invention, how it is made, and how it is used. Every detail disclosed in your patent application should be interpreted to determine whether or not the invention is patentable. However, patent claims are the only section of a patent application that must be reviewed to determine patentability. This makes the patent claims the most important aspect of any patent application and ensuing patent. 

 

patent hacks
Figure 1

Claims are used to define the intellectual property being patented and the scope of that intellectual property. Think of the claims as a fence defining a property line around a house. Everything disclosed in the patent claims would be contained within the property by the fence. Everything that does not match the disclosures made in the claims would be kept on the outside of the fence. This fence now defines the scope of the intellectual property by clearly separating what is and is not protected by the patent.

Figure 1 better depicts this concept. The three inventions keep within the fence are similar in nature and define the scope of the intellectual property even though some features are slightly different. This depicts how the scope of the intellectual property defined in a patent allows for some flexibility. On the other hand, the inventions kept on the outside of the fence are outside of the scope of the intellectual property because they are too different. This depicts that there are limits to the scope of the intellectual property defined in the patent. Patents are not all-inclusive documents, so it is important to understand the boundaries of your patent.

 

 

The scope of the intellectual property defined by the “fence” produced by the patent claims will help protect the intellectual property from any infringement. Once there is a clear understanding of the intellectual property’s scope, it should be easy to determine when an infringement has occurred. When a patent is granted, the applicant(s) are entitled to “patent rights” for the patented intellectual property. This allows the applicant(s) to force any infringing parties to cease and desist and when necessary proceed with legal action. These “patent rights” allow an applicant to protect their patented intellectual property by taking action against any entity that makes, uses, or sells the applicant’s intellectual property. 

How does an invention earn a patent?

Many things factor into patent applications and how they are examined for patentability. As always, the content of the patent application is important. However, when determining if the application deserves a patent, nothing is more important than filing dates, publication dates, and priority dates. These dates are used to determine who was first to file or first to market. The USPTO works on a first-come, first-serve basis. If you are the first person to patent novel intellectual property, then you will earn the patent rights for it. However, if someone else has already patented or publicized the intellectual property, it will not be patentable unless it is modified to differentiate it from any similar intellectual property. This makes the dates associated with the patent application incredibly important. These dates will have a significant impact on whether or not the patent application earns a patent. 

 

Once an inventor creates an invention they would like to protect, they should file a patent application with the USPTO as quickly as possible. The quicker the inventor files, the better, but they should never compromise on quality. Typically the earliest filing date associated with a patent application will be the date a patent examiner uses to determine patentability. The term “priority date” is often used to represent the earliest date that a patent application is documented with the USPTO. The priority date can be the filing date of the patent application or the filing date of a prior application that is being expanded upon (ex. provisional patent). 

 

The priority date associated with a patent application is the date a patent examiner will use to determine patentability. When the patent examiner reviews a patent application for patentability, they perform a prior art search to find any prior art that proves the claimed intellectual property existed before the application was filed. When the patent examiner cannot find any such prior art, the patent application is granted a patent. However, when the patent examiner does find relevant prior art, there must be a date tied to that prior art that proves it existed before the patent application was filed. To make this determination, the patent examiner has to compare the filing date or publication date of the prior art with the priority date of the patent application. This comparison will help the examiner determine if the prior art can prove that the claimed intellectual property existed before the patent application was filed. In other words, any prior art that existed before a patent application was filed can be used to reject the application, and any prior art created after the patent application was filed cannot be used against it.

 

 

How Long Do Patent Rights Last?

 

Did you know that patents do not last forever? At its core, a patent is a trade-off of total protection over your intellectual property for a select period of time in exchange for making your intellectual property public knowledge. So, how long do patents last? Well, the lifetime of a patent varies depending on the type of patent. The table provided in Figure 2 below describes the lifetime of each of the five most popular types of patents. 

 

Patent Type The Lifetime of the Patent
Utility Patent 20 years from the earliest filing date associated with the patent application
Plant Patent 20 years from the earliest filing date associated with the patent application
Design Patent 15 years from the date the patent is issued
Provisional Patent 12 months from the filing date of the patent application
PCT Patent 30 months from the earliest filing date associated with the patent application

Figure 2

 

Despite the lifetime of a patent being based on the earliest filing date, patents do not provide their owners full patent rights until the patent is officially granted. This means you technically lose some of the lifetime of your patent to the patent application prosecution process. Once you are granted a patent, it is important to keep the end date of your patent in mind throughout its lifetime. Ensuring you are fully aware of exactly when your patent rights are going to end will help you prepare to make the proper business moves post-patent. 

 

 

How Much Do Patents Cost?

 

A patent will offer you protection over your intellectual property as well as the opportunity to capitalize on its financial potential, but first, you have to earn one, and that will come at a cost. There are several factors that determine the cost of a patent. Regardless of the path you take, patents are often an expensive venture. Typical patent costs include: 

  • Patent office filing fees (Determined by the USPTO)
  • Patent drawing drafting fees (CAD Drawing Experts)
  • Drafting fees (Patent Attorney/Patent Help Entities) 
  • Filing help fees (Patent Attorneys/Patent Help Entities) 

 

Fortunately, applicants are always permitted to draft and file a patent application on their own. Drafting and filing your own patent application can save you A LOT of money. However, patents are complex legal documents, and without any experience or guidance, it can be tough for an applicant to file a patent application on their own. At Patent Hacks, we are developing our Learning Center to guide new and experienced patent applicants alike through the entire patent application process start to finish. The Learning Center will be available to everyone soon. We will be sure to notify everyone that signs up for our mailing list as soon as the Learning Center goes live!

Your Professional Options

Drafting fees and filing help fees often vary dramatically, depending on whom you choose to work with. Patent attorneys are the most common choice for drafting and filing patents. However, patent attorneys typically cost anywhere from $5,000-$20,000+ depending on the type of patent application being filed and the quality of the firm. Often with patent attorneys, you get what you pay for. Higher costs usually equate to better quality, and lower costs usually equate to lower quality (typically due to a lack of experience). Make sure to extensively vet any patent attorneys before you decide to work with them. If your attorney does a poor job drafting your patent application, you may lose the ability to patent your invention, and the large sum of money you paid will all be for nothing. 

 

Other patent drafting and filing entities, such as InventHelp, charge fees and take a percentage of an invention. A two-year agreement with InventHelp can cost anywhere from $800-$10,000 and a percentage of your revenue depending on how prepared and ready the applicant is to go to market. This business model may make it more cost-effective for the applicant upfront in some circumstances but can cost a lot more in the long run. Once again, it is important to vet those who will be working on your patent application before you decide to work with them. If your draftsperson does a poor job drafting your patent application, you may lose the ability to patent your invention, and the large sum of money you paid will all be for nothing.

Determining Your Entity Status 

One of the most beneficial programs that the USPTO institutes for their applicants is the Entity Status program. This program allows applicants that qualify for the Small and Micro Entity Status to receive discounts on most of their application filing fees. In order to qualify for Small or Micro Entity Status, an applicant must meet the applicable requirements detailed below:

  1. 1. Large Entity Status
    • A. Every applicant that does not meet the requirements for small or micro entity status is automatically considered large entity status.
  2. 2. Small Entity Status
    • A. Each entity that holds rights to the patent application (including licensing rights) total number of employees (including affiliates) cannot exceed 500 people.
  3. 3. Micro Entity Status
    • A. All entities that hold rights to the patent application (including licensing rights) must meet the requirements for Small Entity Status.
    • B. The applicant(s) and inventor(s) mentioned in the patent application must not have been named as an inventor on more than 4 previously filed patent applications.
    • C. All entities that hold rights to the patent application (including licensing rights) must not have earned a gross income that exceeds 3 times the median household income in the last calendar year.
      • I. OR
    • D. The applicant(s) are employed by and earn a majority of their income from an institution of higher education (college or university). 
      • I. OR
    • E. The applicant(s) share the rights to their patent application with an institution of higher education (college or university).

To help you determine your entity status we have created a simple flowchart. Follow the flowchart displayed in Figure 3 until you are directed to a white bubble. The white bubble you end on will identify your entity status.

Figure 3

 

Patent Application Filing Fees

 

The patent office filing fees are fairly standard and only change minimally from year to year, if at all. Each different type of patent usually comes with varying fees and therefore varying overall costs. In Figure 4 below you will find the total cost of the application filing fees for each type of patent (This table includes filing fees alone, and does not include the cost to have an application drafted or filed by a patent professional). Keep in mind, these are only the filing fees. Once a patent is granted, a few more fees are involved including, a patent issue fee and patent maintenance fees.

 

Patent Application Filing Fees (updated to reflect newest USPTO fees)
Type of Patent Large Entity Fee Small Entity Fee Micro Entity Fee
Provisional Patent Filing Fee $300.00 $150.00 $75.00
Utility Patent Fees (Electronic Filing) $1,820.00 $830.00 $455.00
Utility Patent Fees (Non Electronic Filing) $2,220.00 $1,110.00 $655.00
Design Patent Fees $1,020.00 $510.00 $255.00
Plant Patent Fees $1,320.00 $660.00 $330.00
PCT Patent Fees (Non Electronic Filing) $4,286.00 $2,866.00 $2,256.00
PCT Patent Fees (Electronic Filing Without ePCT or PCT-Easy .zip file) $3,777.00 $2,557.00 $1,947.00
PCT Patent Fees (Electronic Filing With ePCT or PCT-Easy .zip file) $3,669.00 $2,449.00 $1,839.00

Figure 4

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