Frequently Asked Questions
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Q: What are the benefits of Patent Protection?
A: A patent prevents others from making, using, selling or importing your invention into the country. A patent also creates a barrier for entry into a particular technology zone covered by the patent; thus, a competitor would have to create a competing product that is outside of the region covered by the patent claim. In order to do so, it may become prohibitively expensive for the competitor to sell the aforementioned competing product as it may be too complex, materially costly, or difficult to operate in relation to your patent idea. Finally, patent rights can be licensed or sold to others maximizing inventor profit whilst minimizing inventor manufacturing cost to zero.
Q: What can be patented?
A: Currently, patent protection is available for any useful, novel, and non-obvious composition of matter, article of manufacture, machine, process or improvement.
Q: What types of patents are there in the USA?
A: Right now there are three types of patents available at the United States Patent and Trademark Office (USPTO). The first of these is a Design Patent which covers the ornamental embellishments of an item; Design Patents are known as Industrial Design outside of the USA. The second of these is a Utility Patent that covers the functional or structural features of an item that are uniquely providing a useful result. The final type of patent available is called a plant patent.
Q: What types of Patent Applications are there?
A: There are two major types of patent applications that we deal with, namely, Design Applications and Utility Applications. Additionally, Utility applications are broken down into provisional (one (1) year temporary applications) and non-provisional patent applications (twenty (20) year potential monopoly).
Q: What does Patent Pending Mean and when can we use that term?
A: Patent Pending means that you have a patent application pending in the particular jurisdiction of the patent application; use this term once the application has been accepted by the initial legal instruments examination and is waiting to be docketed to a particular art unit.
Q: What is prior art?
A: Prior art is anything that has been publicly disclosed by others before the filing of your patent application. Trade magazines, granted patents, published patent applications, online products and more can all be considered prior art whether in this or other country using English or foreign language.
Q: How long do patents last?
A: A design application last fifteen (15) years from issuance whilst a non-provisional utility application lasts twenty (20) years from filing of the earliest priority date claim from another US or international application such as a Patent Cooperation Treaty (PCT) application.
Q: What are the tests for patentability?
A: Your concept must be 1) useful; 2) novel; and 3) non-obvious.
1) Useful: Generally speaking if it didn’t have usefulness of some sort then you would probably not be filing it so most ideas meet this test from the outset.
2) Novel: Novelty is resolved if there is nothing identically like it in the prior art.
3) Non-Obviousness : The final test non-obviousness is determined when the patent examiner evaluates the closest existing prior art in order to make a finding of whether or not it would have been obvious to one of ordinary skill in the art to modify the prior art to make your invention. In many ways this seems to be a mere rearrangement of parts in other patents or other prior art references or combinations thereof; however, this ‘rearrangement’ by the examiner has to not only logical but must also meet specific tests that are constantly mitigated based upon existing case law and current patent practices of the USPTO.
Q: How long does it take to get a patent?
A: A design application typically takes from six (6) months to about a year to get some resolution on the application. Design applications are notoriously easier to obtain then utility applications, thus, they have a shorter pendency. A non-provisional utility application takes between one and a half (1.5) to three (3) years to resolve the patentability issues on the merits of the application.
Q: What are the current government fees for a patent?
A: The United States Patent and Trademark Office provides a listing of current fees at the following link:
Q: What are maintenance fees?
A: Maintenance fees are government fees that are due for issued patents based on a non-provisional patent application. Maintenance fees are NOT due for Design patents. The fees are due at 3.5, 7.5 and 11.5 years after the issuance of the application. The USPTO collects these fees and they are easily payable at the USPTO maintenance fee portal:
Q: What does entity status mean?
A: The USPTO offers three different types of payment levels based upon various requirements; the three entity types are known as Large, Small and Micro entities.
Q: What does large entity status mean?
A: Companies can be considered for large entity status if it has more than 500 employees. Additionally, in order to be complete the employees of a company that are considered an affiliate of the first company might have to be counted in accordance with 13 CFR 121.103 based upon whether it controls the decisions of the affiliate.
Q: What does small entity status mean?
A: Small entities pay half off of large entity fees. To qualify for small entity status the following situations are considered as potentially qualifying:
- non-profit institutions such as colleges and universities;
- small business with fewer than 500 employees;
- individual persons who don’t qualify for micro entity levels;
- 501(c)(3) corporations;
- the particular person or group must NOT have a responsibility under contract or law to assign, grant, convey or license to another party any portion of the concept to a large entity.
Q: What does micro entity status mean?
A: Micro entities pay 1/4 of large entity rates or 1/2 of small entity rates. To qualify for micro entity status, the applicant nor anyone on the inventive team can have had a gross income greater than or equal to three times the median household income for that preceding calendar year. The current gross income level to qualify for Micro Entity is $206,109.
Q: How can I get a patent in other countries?
A: Product Developers can get patent protection by filing a Patent Cooperation Treaty (PCT) application which covers patents in over 150 nations. The PCT application is typically based upon on an original US application; care must be taken to file the PCT application within a year of filing the US application or you might lose international patent rights. Additionally, the PCT defrays the cost of the filing overseas for approximately 30 months from filing the PCT. The main link for international filings is at WIPO and there are more links available at patent resources and at the USPTO PCT.
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