Protect Your Invention by Applying for a Patent
Posted on Thursday, August 16, 2018 Share
In today's complex world, every business owner should have a basic understanding of patents. Without this knowledge, you can't protect your company's inventions or defend yourself against lawsuits from other firms.
Supreme Court Defines a Patentable Process
In a computerized era, you may wonder whether a business method (not tied to a machine or apparatus) be patented? The Supreme Court answered that question in a significant case.
In the case, the inventor came up with a method of hedging risk in the commodities trading field. Specifically, the invention explained how commodities buyers and sellers in the energy market could protect, or hedge, against the risk of price changes.
The Supreme Court ruled the inventor's "application is not a patentable process". (Bilski v. Kappos, No. 08-964, 6/28/10)
The court held that a claimed process is patent eligible if:
It is tied to a particular machine or apparatus, or
It transforms a particular article into a different state or thing.
The Court noted the difficulty of answering questions like this in the Information Age. It added: "This Age puts the possibility of innovation in the hands of more people and raises new difficulties for the patent law. . . . the patent law faces a great challenge in striking the balance between protecting inventors and not granting monopolies over procedures that others would discover by independent, creative application of general principles."
U.S. patents date back to the Constitution, where it says Congress can secure "for limited times to ... inventors the exclusive right to their discoveries." In other words, patents provide the owner with the right to exclude others from making, using, selling, offering for sale, or importing the invention for 20 years. Patents are granted by the U.S. Patent and Trademark Office.
Exclusive rights begin once a patent is granted and they expire 20 years after the application is filed. Most patents are owned by companies, inventors and universities.
If your company is granted a patent, it is only good in the United States. Americans can apply for patents individually from foreign countries, but it is usually a complex process.
Applying for a patent involves more than just filling out a simple form. The application form is a legal document, which must be accompanied by a description and drawings of the invention.
A Provisional Application
It can be expensive, but there might be a cheaper alternative. The Patent & Trademark Office offers the option of filing a "provisional application" for a patent.
This lower-cost option has fewer requirements but you must provide a detailed written description of the invention, its intended use and, if appropriate, an informal drawing.
This lets you claim "patent pending" status for one year. If you don't follow up with a regular patent application, the provisional status will expire. You can still file for a patent on the same invention, but you won't be able to benefit from an earlier effective filing date (these applications can't be used for ornamental designs.)
What Can Be Patented?
The list of what you can patent includes machines, manufactured products, chemicals, computers, and applied technology. You can't patent scientific principles or naturally occurring materials. Under U.S. law, there are three different patent types:
1. A utility patent on the functional or structural aspects of an apparatus, composition of matter, method or process. (See right-hand box for a Supreme Court case defining a process.")
2. A design patent on the ornamental design of useful objects.
3. A plant patent on a new variety of living plant.
Contrary to popular belief, patents don't protect ideas. Rather, they protect the structures and methods that apply technological concepts.
In return for receiving the right to exclude others, the inventor must relinquish the secrecy of the invention and fully disclose to the public the best mode of making and using the invention. For more information in your situation, consult with an intellectual property attorney.
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Disclaimer: The information contained in Dulin, Ward & DeWald’s blog is provided for general educational purposes only and should not be construed as financial or legal advice on any subject matter. Before taking any action based on this information, we strongly encourage you to consult competent legal, accounting or other professional advice about your specific situation. Questions on blog posts may be submitted to your DWD representative.