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On Behalf of | Aug 5, 2015 | Wang IP Law Blog

The United States Patent and Trademark Office (USPTO) grants patents for the protection of inventions. Patent holders have the exclusive right to make, use, or sell an invention for a certain period of time. Filing a patent application is a complex process but it is necessary for the legal protection of an invention. The USPTO examines applications and grants patents only to applicants who meet certain requirements. Before applying for a patent, consider the following questions:

1. What can be patented?

Statute 35 U.S. Code § 101 reads that anyone who “invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent.” The invention, also known as the article, being filed must be useful, functional, and have a purpose. It is also important to keep in mind that patents have expirations dates, after which the rights become public property.

There are two main types of patents, a utility patent and a design patent. A utility patent protects the functional aspects of an article such as the process, machine, or manufacture. The term “process” is defined as a method that includes technical processes. A “machine” is a new tool or invention that performs an intended action, and “manufacture” is used to refer to how articles are made. A utility patent provides broad patent protection that makes it difficult for competing products to avoid patent infringement.

A design patent protects only the external appearance of an article and cannot protect the functional features of an article. It is more difficult to obtain a licensing deal on a design patent because it is difficult to protect different variations of the product. It is possible to obtain both a design and utility patent on an article but the applications must be filed separately. It is important to understand which aspect of the invention that needs to be protected in order to file the correct patent.

2. Is my invention new?

An invention must be new in order to apply for a patent. The patent law defines new as an article that has not already been patented or otherwise available to the public before the date of filing. The article must also not have been described in another patent issued before.

It is necessary to conduct a patent search on all products and technologies related to the invention before filing for a patent to determine the aspects that differentiate it from the others. What makes this invention stand out from other? Identifying what makes the invention unique will be beneficial in the patent application process.

3. Is my invention novel and non-obvious?

In addition to being new, the invention must also be novel. This means that no other invention or product that is in the market can contain all of the elements of your invention. Even if the invention being filed contains one or more differences, it may still be denied. The article must be significantly different from any other article with the same function. In addition, the innovations of the article must be non-obvious to a normal person who possesses no extraordinary skill in the area of technology relating to the invention. The article must not contain any elements that are also found in other similar reference inventions. You must be able to claim your invention as unique and innovative.

4. Am I ready to file a patent application?

A patent cannot be filed on solely an idea or suggestion, it can only be granted to a new machine. One way to get an early filing date on a patent is to complete a provisional patent application to receive a patent pending on the invention. A patent pending gives the owner one year to continue experimenting and working on the project. There must be evidence of experimentation and progress being made on the invention. As an inventor, it is important to keep a detailed record of the changes made to the invention.

In order to increase the chances of approval on a patent application, the inventor must be able to prove that the article is new, novel, and non-obvious. It may also be helpful to contact an attorney to assist in the application process.