The United States Patent System
Let our Boston Patent Attorney at our Boston Intellectual Property Law Firm explain your options for US Patents and how the United States Patent and Trademark Office was established “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;” as set forth in the United States Constitution.
A Patent issued by the United States Patent & Trademark Office confers the following rights to the owner of a patent:
- A right to exclude others from making the patented invention;
- A right to exclude others from using the patent invention;
- A right to exclude others from selling the patent invention;
- A right to exclude others from offering for sale the patented invention; and
- A right to exclude others from importing the patented invention.
- Currently, the term for enforcement of the above rights for an issued United States patent is (20) years from the earliest claimed filing date.
There are three different types of patents which may be issued by the United Patent & Trademark Office:
Utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof.
Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture.
Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.
A provisional patent application provides for an inventor to receive a filing date by submitting a disclosure of the proposed invention to the Patent Office. However, it is important to understand that a provisional application does not undergo any type of formal examination and expires (1) year after filing. Provisional applications do not issue as a patent but rather serve as a basis for filing a Utility application, wherein an inventor may rely on the provisional filing date later.
A non-provisional Utility Patent application is a formal application designed to protect the functionality of an invention. As discussed below, a Utility application undergoes formal examination to determine whether a proposed invention meets the criteria for patentability, namely that the invention is useful, novel and non-obvious. A Utility application possesses formal and substantive requirements for submission which include a technical description of the proposed invention, along with professional patent drawings and a set of claims that define the scope of the proposed invention.
A design patent application is a formal application designed to protect the ornamental appearance of an invention. As with a Utility application, a Design application is examined to determine whether the proposed appearance of an invention is both novel and non-obvious. A Design application contains formal drawings showing different views of the invention accompanied by short description of the views shown.
Upon submission of a patent application to the United States Patent & Trademark Office, an application will undergo initial pre-examination processing to ensure that the proper fee has been paid, all the documents required have been filed and the application is considered ready for examination.
Once the application is ready for examination, the application will be assigned to a Patent Examiner whose technical background is similar to that of the proposed invention to review the application to determine the patentability of the invention. A Patent Examiner will conduct their own examination and search to determine whether the proposed invention is useful, novel and non-obvious in light of previously issued patents, published patent applications and/or printed publications and public disclosures.
The majority of patent applications are initially rejected by a Patent Examiner on grounds that it is the Examiner’s opinion that the invention as originally defined by the claims of the application, either lacks novelty or is obvious in view of previous patents and other associated prior art. Following receipt of the Examiner’s report, the inventor may file a response to the Examiner’s arguments including amending the claims which define the proposed invention to differentiate over the patents cited by the Examiner along with explaining the differences between the proposed invention and the prior art.
At some point, after the response and amendment process, a Patent Examiner will either determine the proposed invention is in condition to receive a notice of allowance or will finally reject the invention, at which point an inventor may initiate an appeal.