WHAT IS A PATENT?
A patent is the constitutional right extended to inventors as an incentive to advance mankind’s standard of living. A patent gives exclusive rights to commercialize an invention, and therefore provides a powerful competitive advantage to its holder.
By filing for a patent, you document ownership of an idea similar to the way a “title” does for a car or a “deed” does for real estate. Like other forms of property, patents are valuable assets and can be bought, sold, leased, used as collateral for loans, and even inherited.
There are certain deadlines that an inventor must meet in order to avoid the loss of patent rights. In the United States an inventor must file a patent application with the United States Patent and Trademark Office within one year of the first date on which the invention was offered for sale or made public. Failure to do so will result in a loss of all patent rights. Inventors and entrepreneurs should be careful in revealing a new innovation or business method to a manufacturer or venture capitalist, for example, without adequate legal protection. The terms “offer for sale” and “public disclosure” are interpreted broadly and encompass a wide variety of fact patterns.
In many foreign countries, patent rights are lost once a public disclosure or offer to sell an invention is made. These countries subscribe to what is known as “absolute novelty.” In these countries, claiming international priority within the one year of the presentation of the U.S. patent application is critical. Otherwise, the invention may fall in the public domain.
There are basically three types of patents: Plant Patents, Design Patent and
These federally protected patent rights extend for at least 20 years from the date of filing of the application that matures in a patent. Delays during the patent application prosecution caused by the U.S. Patent and Trademark Office are converted to additional time credits that may extend the grant beyond the nominal 20 years. During the exclusivity period, the inventor or his designs, are the only ones who can sell, offer for sale, use, manufacture, import (or offer to import) articles of manufacture, compositions, machinery or processes covered by the patent claims.
An inventor is deemed to possess an invention when he or she reduces it practice either by building a prototype (actual reduction to practice) or by filing a patent application (constructive reduction to practice). By definition the patent application has to have sufficient information to enable others skilled in the art to practice the invention (after the patent expires). From a substantive point of view, the invention has to be useful, novel and not obvious to someone skilled in the art. These tests need to be met by simple or complex inventions alike.
During the prosecution of the application, an Examiner is appointed to search the area of the patent claims, examine the application including a comparison of the claims with the prior art (i.e. other patent references) and issue a decision. The Examiner’s decision could be either to reject of one or more of the claims (with the reasons for the rejection) or issue a notice of allowance. If the notice of allowance is issued, the issuance fees are paid and the patent certificate is normally issued a couple of months later.
Design patents protect the ornamental features of an invention and have a term of 14 years from the date of issuance. There are no maintenance fees associated with design patents. The role of the draftsman is critical with design patent applications since it is what is drawn that is claimed.
Plant patents are issued to an inventor for protecting plants that reproduce asexually (without seeds). These plants may be protected by filing a plant patent application. Plant patents have a term of 20 years from the date of filing.
Since 1977, SANCHELIMA & ASSOCIATES, P.A. has dedicated its practice exclusively to securing and preserving the intellectual property rights of its clients. Our firm is a results oriented organization blending our resources with those of our clients to pursue their objectives. We look forward to being part of your team.