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The Basics of U.S. Patent Law

On Behalf of | Nov 25, 2020 | Patent Law

The patent process can be complex, especially for business owners and inventors who have never obtained a patent before. Whether you are a new entrepreneur or an experienced investor, it is wise to become familiar with US patent law basics before seeking a patent. Applying for a patent is not a simple process; hire an experienced patent lawyer to create your application and submit it. 

The US Patent and Trademark Office (USPTO) uses complex regulations and requirements for patent applications. When inventors fail to meet all of these requirements in their patent applications, the USPTO will reject their applications and the inventors will need to start over again. Your lawyer will help you understand the process and guide you through submitting a patent application.

Conducting a Patent Search

The first step in obtaining a patent is creating a patent search. Most inventors and businesses pay a third party to conduct their patent search. Conducting effective patent searches requires specialized skills. During the patent search, you will need to look for prior art. Any invention that has already received a patent that is too similar to your potential patent will be considered prior art by the USPTO and prevent you from obtaining your patent. If you do find prior art that is too close to your invention or design, you will benefit by saving the money you would need to spend on a patent application.

When you do not find any prior art, it will lead you to a stronger patent application and likely result in a smoother patent application process. You may find other patents that are close to your invention or design but still distinguishable in some cases. Your lawyer will be able to draft your patent application to focus on what makes your patent stand out from the closest competitors, focusing on the patentable components or features. The first patent application you file is critical. You will need to disclose all aspects of your invention, and you will not be able to add anything new to your application after the priority date, or filing date.

Provisional Patent Applications

You will need to discuss whether you would like to file a provisional patent or a non-provisional patent application with your attorney. Most patent applications are non-provisional, but there are some benefits to starting with a provisional patent application. When you file a provisional patent application, it will establish an early filing date for your patent. However, a provisional patent will never mature into an actual patent unless you file a non-provisional patent application within one year.

Filing a provisional patent can be helpful because it gives you more time to work on your non-provisional patent application while protecting your new invention or design from copycats. When you submit a provisional patent application, the USPTO will not evaluate your claim and determine whether you have a right to a patent. However, it will secure your filing date, which can help you finalize your non-provisional patent application. Provisional patent applications are less expensive and simpler than non-provisional patent applications and take only 10 pages or less to describe the invention or idea. Your patent lawyer will be able to help you understand the benefits and disadvantages of filing a provisional patent agreement.

Filing a Non-Provisional Patent Application

You will need to file a non-provisional patent within a year to protect your intellectual property rights. When the USPTO grants a patent application, they will grant you a property right as the inventor. Once the patent has been approved, the inventor will have “the right to exclude others from making, using, offering for sale, or selling” the invention in the U.S. or “importing” the invention into the U.S. The patent application needs to contain all of the required information. There are four types of patents available in the United States, including:

  • Provisional Patent Applications
  • Non-provisional Patent Applications
  • Design Patent Applications
  • Plant Applications

Your patent lawyer will be able to direct you to the appropriate type of patent for your needs. You can also file an international patent application along with your U.S. patent application if you are interested in obtaining international rights for your invention. All patent applications will need to include proof that the following requirements have been met:

  • Patentable Subject Matter: The invention claimed in your application must be directed to one of the categories of the patent-eligible subject matter.
  • Definiteness: The patent claims that define the design or invention’s legal boundaries must be clear.
  • Written Description: The written description must describe the invention adequately.
  • Enablement: The specification level in the application must enable a person to make and use the invention.
  • Novelty: The invention cannot be the same thing as another known invention or design, called prior art.
  • Nonobviousness: The Invention cannot be an obvious extension of the prior art.


Ideas are Not Patentable

Ideas are not patentable in the United States, and they cannot be copyrighted. The hardest part of securing a patent is ensuring that you fully develop an idea and describe your idea or design in a way that shows its unique qualities. Compounds, processes, and machines are all eligible for patents. Even living organisms that laboratories have genetically engineered are eligible for patents.

Software and business methods can also be patented in the United States. Your idea must be concrete enough to be more than simply a “mere idea.” Many patent applications have failed because they lack the specificity required to show uniqueness. The first step in proving that you have an invention or design, not a mere idea is through a vivid description of your product or design. You will not need to prove that you have a working prototype or a working model of your product or invention to secure a patent. Instead, you will need to describe your product or design using enough detail to give the USPTO examiner a good idea of what it is and what it does.

Contact Our Patent Lawyers Today

If you would like to learn more about our patent Services, contact AU LLC today to schedule your initial consultation. We are located in Chicago and represent clients throughout the United States in intellectual property matters.