Each type of patent provides a different kind of protection.
Types of Patents
Utility Patent
Utility patents protect how an invention works. This protection includes the functional aspects of a machine, process, manufactured goods, or composition of matter, as well as any new and useful improvements.
Design Patent
Design patents protect a product's appearance, including its unique visual appearance and surface ornamentation.
Plant Patent
Plant patents protect new and unique types of plants that reproduce asexually.
The legal requirements for a patent are:
Patent Legal Requirements
Utility
A patented invention must have utility, meaning that it must be functional, provide some identifiable benefit, and work according to its intended legal purpose.
Non-Obvious
A patented invention must be non-obvious, meaning that it is sufficiently different so that a person with ordinary skills in the art would not find it obvious at the time of the invention.
Novelty
A patented invention must be novel, meaning that it is new and was not the subject of public disclosure by the applicant more than a year before its priority date.
Patentable Subject Matter
A patented invention must claim patentable subject matter, which includes any new and useful process, machine, manufacture, or composition of matter or any new and useful improvement thereof. Patentable subject matter does not include laws of nature, natural phenomena, or abstract ideas.
Patent Applications
As a legal requirement, the patent application must describe the invention with sufficient detail so that a person of ordinary skill in the art can replicate it without undue experimentation. The patent application must also demonstrate that the inventor(s) had a working knowledge of the invention as claimed at the time of the application filing.
A patent application includes the following sections:
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Title
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Cross References to Related Applications
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Summary
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Brief Description of the Drawings
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Drawings
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Specification that is a detailed description of the invention
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Claims that define the scope of the claimed invention
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Abstract
Patent Enforcement
Infringement occurs when someone uses, manufactures, sells, offers for sale, or imports the patented invention in the United States without the patent owner's permission. The patent owner may take legal action in federal court against this patent infringement.
As an initial step to enforcing their patent, the owner may send a cease-and-desist letter demanding that the infringer stop the alleged infringement and provide a financial accounting. An essential goal of these letters is to start negotiations between the two parties.
If negotiations do not work, the patent holder can file a complaint for patent infringement in federal court. In response to a cease and desist letter threatening litigation, the alleged infringer may file for declaratory judgment for non-infringement in federal court.
Patent Appeal
An applicant may appeal an examiner's final office action before the Patent Trial and Appeal Board (PTAB).
An appeal involves the following stages:
1.
Pre-Appeal Brief Review
Before submitting a formal appeal brief, an applicant may request a pre-appeal brief review by a panel of examiners to assess the pending rejections.
2.
The applicant must file a notice of appeal and the corresponding fee to initiate the appeal process before the PTAB.
Notice of Appeal
3.
An appeal brief that clearly articulates the errors in the examiner's rejection and presents arguments and evidence to support the invention's patentability is filed with the PTAB.
Appeal Brief
4.
The examiner may issue an examiner's answer addressing the arguments presented in the appeal brief. The applicant may file an answer to the examiner’s answer.
Examiner’s Answer
5.
Applicants may request an oral hearing before the PTAB to present their arguments in person.
Oral Hearing
6.
After reviewing the filed briefs and conducting an oral hearing, the PTAB issues a decision that may be a reversal of the rejection, an affirmation of the rejections, or a remand back to the examiner with instructions.
PTAB Decision
7.
If the pending rejections are affirmed, the applicant may request a rehearing before the PTAB or file an appeal with the United States Court of Appeals for the Federal Circuit.
Post PTAB Decision
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Foreign Filings and PCT Applications
A corresponding foreign patent application may be filed within one year of the U.S. patent application filing, claiming priority to the earlier U.S. patent application filing date. Instead of filing separate applications in various foreign territories, a single Patent Cooperation Treaty (PCT) application may be filed through the World Intellectual Property Organization (WIPO). The single PCT application will be forwarded to multiple participating foreign territories along with the results of an initial search of the application.
Prosecution of a PCT application includes the following stages:
1.
Filing
A PCT application is filed in a receiving office (RO)(e.g., USPTO) within 12 months of the filing date of a corresponding application. The filed PCT application includes a designated International Searching Authority (ISA) to conduct an initial search.
2.
The ISA issues an international search report (ISR) listing relevant prior art that may affect patentability.
Issuance of International Search Report
3.
WIPO publishes the PCT application and the ISR approximately 18 months after the priority date of the PCT application.
Publication
4.
A supplementary international search and an international preliminary examination of the PCT application may be requested.
Supplemental Search and Examination Request
5.
The PCT application enters a national phase in each participating foreign territory where the applicant seeks patent protection within approximately 30 months of the application’s priority date.
National Phase
Patents
Patents grant their owners the right to prevent others from making, using, or selling a claimed invention within a specific jurisdiction. Consequently, a patent is often regarded as an asset, offering benefits such as market protection, licensing revenue, and a foundation for venture capital.
60.2%
is the current allowance rate of utility, plant, and reissue patent applications
81.5%
is the current allowance rate of design patent applications
How TCP Law Can Help
A patent attorney at TCP Law can assist you in preparing, filing, and prosecuting a patent application for your invention. A patent filing engagement will typically include (a) providing you with a well-crafted patent disclosure form to complete, (b) performing one or more inventor interviews, (c) drafting a set of claims to review with you, (d) drafting a full specification, including multiple passed based on your feedback, and (e) preparing and filing a patent application with USPTO.
If you have any questions regarding general patent issues or want to discuss your specific patent matter, please contact me at john@tcplawfirm.com or at 917-612-1059.
Patent Prosecution
A patent application is prosecuted before the USPTO.
Patent prosecution involves the following stages:
1.
Filing
A provisional or non-provisional patent application is filed with the USPTO. The non-provisional application will undergo examination by the USPTO. The provisional application provides a priority date for a later filed corresponding non-provisional application.
2.
The filed application is reviewed to ensure it meets the necessary formalities. A non-provisional patent application is assigned to a technical group within the USPTO.
Review
3.
The non-provisional patent application is assigned to a patent examiner within the technical group. The examiner will search and determine the patentability of the claimed invention.
Search
4.
Based on his review and search results, the examiner may issue one or more office actions outlining objections and rejections of the claimed invention. The applicant must file a response outlining arguments and amendments to overcome each objection and rejection.
Office Actions
5.
A notice of allowance will be issued if the invention is determined to be patentable.
Allowance
6.
A patent is granted once an issue fee is paid.