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Patent Frequently Asked Questions

The answers to the following questions should be read as preparatory rather than as definitive.


Also see:

Copyright FAQs

Trademark FAQs

What is a patent?

A United States patent is a grant from the federal government awarding an inventor exclusive rights to his/her invention for a limited period of time in exchange for the invention’s public disclosure. During that time frame the inventor has the right to exclude others from making, offering for sale, using, or selling the invention.
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What will I learn in my initial free consultation?

During the initial consultation, a patent attorney will provide you with options of how to proceed with protecting your invention. The patent professional will make an initial assessment of whether or not your invention is patentable subject matter. If it is determined that it is patentable subject matter, the inventor has the option to obtain a comprehensive patentability search and opinion. And if the results of the search and opinion indicate that the invention is likely to be patentable the inventor has the make a decision as to whether or not to file a patent application.

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Should I file for a Utility or Design Patent?

There are two (2) main types of patents: utility patents and design patents. In most cases, it is better to pursue utility patent protection since protecting the structure and/or function of an invention is preferable over protecting the ornamental design of an invention. However, where meaningful utility patent protection may not be available, or if the appearance of an invention is more important than its structure and/or function, design patent protection may be the best choice. There are also situations where an inventor may feel that structure and/or function and/or appearance are important, and when this occurs, the inventor may choose to concurrently file both utility and design patent applications for the same invention.

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What is a utility patent?

A utility patent protects the structure and/or function (i.e., how it works and how it is used) of an invention and is normally pursued in those instances where it is desired to protect how the invention operates. A utility patent can be issued to any person who invents a new, useful, and non-obvious (1) process, (2) machine, (3) manufactured article, (4) composition of matter, or (5) any new and useful improvement to any of these types of inventions.

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What is a design patent?

A design patent is strictly directed to protecting the overall appearance (i.e., how it looks) of the invention. It can be granted for a new, original and ornamental design for an article of manufacture.

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Can I file a patent application without purchasing a patentability search and opinion?

It is typically recommend in the patent industry that inventors obtain a preliminary patentability search. The objective of any preliminary patentability search is to discover issued “prior art” – United States patents or published patent applications which are similar to the invention being investigated so that a judgment can be made as to the potential for obtaining patent protection.

A preliminary patentability search and opinion allows the inventor to draw a conclusion as to whether or not the invention is likely to receive patent protection. An inventor can file a patent application without a search but a search is typically performed to avoid the expense of filing an application that has little chance of success.

However, if you would like to proceed directly to filing a patent application, please call us at (800) 866-0039 or email us at [email protected].

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What can be patented?

According to the U.S. Supreme Court, “anything under the sun that is made by man” can be patented. The types of subject matter that can be patented are:

  • a new and useful process,
  • a machine,
  • an article of manufacture,
  • a composition of matter, or
  • any new and useful improvement of any of the above listed subject

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What makes an invention patentable?

An invention is a patentable subject if it is:

  • Novel,
  • Useful, and
  • Non-Obvious to one having ordinary skill in the relevant art at the time the invention was made.

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Why should you protect your invention with a U.S. patent?

You have something that no one else has: a valuable invention. You need to protect it so nobody else can copy it for profit. You need to file a patent application before anyone else.

PatentHome can help you be the first to file a Provisional Patent, Utility Patent or Design Patent.

Filing a patent application through is easy and inexpensive. Just answer a few questions online and our trusted, experienced patent practitioners will take care of the rest.

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Can you negotiate a royalty agreement without patent protection?

Yes, you can negotiate a deal without patent protection, but you will be at a severe disadvantage without a patent. Once an inventor starts shopping his/her idea around there’s no stopping anyone from copying it, and then making/using the product if it’s not protected by a patent. It is vitally important for an inventor to protect his/her idea by filing a patent application.

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What do the terms “Patent Pending” and “Patent Applied For” mean?

The terms “patent pending” and “patent applied for” can be marked on a product/article sold by a manufacturer or seller so as to put the public on notice that a patent application has been filed with the U.S. Patent and Trademark Office. Once a patent application is published, it puts a person on notice that, if the patent application matures to an actual patent, they are producing a product that potentially infringes upon the claimed invention. If a patent is granted the harmed party can then sue the infringer for past royalties from the time the infringer was put on notice.

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What happens if a product is falsely marked patent pending or patented?

As of June 2011, the law permits any person to file a ”false marking” lawsuit on behalf of the government if a manufacturer or seller falsely marks those terms on a product. However, if a proposed patent reform bill (Patent Reform Act of 2011) is passed, only persons who have “suffered a competitive injury” will be able to file such a law suit. There’s been a recent influx of false marking lawsuits presumably because, if successful, the party bringing the lawsuit will split half the damages (up to $500 per infringing product) with the government.

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How and why should I mark a patented product?

You should always mark a patented product. A patentee (or a person who purchased patent rights from the patentee) properly marks patented articles with the word “Patent” and the patent registration number. By so marking the products he/she puts potential infringers on notice of a potential patent. Without such notice the patentee may not recover damages from the infringer. If one is duly notified of the possible infringement, and continues to produce/sell the product in question, the patentee may collect treble (triple) damages for an intentional infringement.

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What are the requirements to apply for and own a patent?

First, other than in certain instances (see below), only the actual inventor(s) can apply for a patent. If a non-inventor applies, the issued patent would be invalid and any person who falsely claims to be an inventor may be subject to criminal charges.

Exceptions to the rule limiting patent applicants to inventors include: (1) if the inventor sold the patent rights and later unlawfully refused to sign the patent application declaration; (2) a person with a proprietary interest in the invention may apply on behalf of the non-signing inventor; or (3) if the inventor is incapable because of age or a mental/physical disability, or is dead, the legal representative such as a Guardian, or the administrator/executor of the estate, may apply.

Once an inventor receives a patent he/she may sell the patent rights to anyone, thus anyone can own a patent. An inventor’s transfer of all or part of a patent application or patent’s interest to another is called an assignment. It is always wise for a patent rights owner to record the assignment document with the USPTO Assignment Services Division in order to safe keep the transfer, and to establish an ownership chain.

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What is a provisional patent application?

A valid U.S. provisional patent application secures a filing date for the inventor. This application provides a lower cost first patent filing so as to give U.S. applicants parity with foreign applicants.

A provisional patent application never matures into a patent. In order to maintain the filing date, a non-provisional patent application must be filed within 12 months from the provisional application’s filing date. The claimed subject matter in the later filed non-provisional application is entitled to the benefit of the earlier filing date if supported in the provisional application.

Patent claims and an oath/declaration are NOT required for a provisional application. Provisional applications permit a person to mark the term “Patent pending” on a related product/item (but NOT for design inventions).

Provisional applications are NOT examined on their merits and may become abandoned 12 months from their filing dates. The provisional application’s 12-month pendency is not counted toward a patent’s 20-year term granted as to a subsequently filed non-provisional application which relies on the earlier provisional filing date.

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Who owns the patent if two or more inventors combine to create an invention?

Each person who contributes to the ideas forming the invention as defined in the patent claims is considered an inventor and a joint owner. The patent office will not attempt to determine if one inventor owns a greater share. Each listed inventor owns an equal share, and the patent will be issued to them jointly on the basis of a proper patent application.

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How many years of patent protection is an inventor granted?

Utility and plant patents have a 20 year term beginning on the date the patent is granted and usually ending 20 years from its filing date. However there may be adjustments due to delays with processing the patent claim as time can be added or subtracted depending on who caused the delay. Usually the patent office extends the term due to its massive backlog of filed applications. But an applicant may also cause a delay by inaction or by amending the application. A patent will also expire before the end of its term if the maintenance fees are not paid.

The term for Design patents is 14 years from the date the patent is granted (no maintenance fees are required for a design patent).

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Are there any state agencies that can help me develop and market my invention?

Yes. Nearly all states have planning/development agencies or commerce and industry departments which seek new product and new process ideas to assist manufacturers and communities. If you do not know the names/addresses of your state’s agencies you can obtain the information by writing to your governor.

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What cannot be patented?

The U.S. courts have defined the limits of the subject matter that can be patented, and have ruled that the laws of nature, physical phenomena, and abstract ideas are not patentable.

Ideas are not patentable. Patents are granted to the person who’s able to make the new machine, the article of manufacture, etc., and not upon the mere idea or suggestion of the new machine. An example of a non patentable idea until someone produces it is the Starship Enterprise’s transporter instrument. Patent law requires an inventor to provide a complete description of how to make and use an actual transporter before a patent can be issued.

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What are the basic things I should know about a provisional patent application?

  • Provisional applications provide an early effective filing date and a one-year extension as to the filing of a U.S. non-provisional patent application
  • In order to retain the priority benefit of the provisional patent application, a regular U.S. patent application and any foreign counterpart applications must be filed within one year of the provisional patent application and must claim priority based on the provisional patent application or the provisional patent application will become abandoned
  • The foreign patent application may include national, regional (e.g., European), or Patent Cooperation Treaty (PCT) patent applications
  • Provisional applications can be filed without any formal patent claims, oath or declaration, or any information disclosure (prior art) statement
  • The 12-month pendency for a provisional application is not counted toward the 20-year term of a patent granted on a subsequently filed non-provisional application which relies on the filing date of the provisional application
  • Since a patent only issues after a non-provisional application is filed, the time the provisional application remains pending adds to the time before you actually receive a patent

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Can I get a provisional patent?

Inventors often ask me “can I get a provisional patent?” But there is no such thing as a “Provisional patent.” A provisional patent application is a patent application that is used by a patent applicant to secure a filing date. A provisional patent application never matures into a patent. And there is no patent protection until a non-provisional application is allowed and issued as a patent. In order to maintain the filing date, a non-provisional patent application must be filed within the 12 month period starting from the filing date of the provisional patent application.

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Why should I file a provisional patent application?

  • Provisional applications have a lower initial cost with one full year to assess the invention’s commercial potential before committing to the higher cost of filing and prosecuting a non-provisional application for patent
  • The term “patent pending” can be used by the inventor for the duration of the one-year pendency of a provisional patent application
  • Provisional applications provide an early effective filing date and a one-year extension as to the filing of a U.S. non-provisional patent application

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