Patent Law Basics: A Legal Overview

What is patent law?

Patent law is a branch of intellectual property law specific to inventors. A patent gives inventors exclusive rights to their inventions for a limited period of time (typically 20 years), preventing others from making, using, selling, or importing the invention without permission. So if you invent the next best thing since sliced bread, a patent will ensure that you, as the patent owner, are the only one who can profit from it in its early years.

In addition to protecting intellectual property from patent infringement, patent law serves a broader purpose that benefits both inventors and the public: 

• Rewarding inventors with temporary monopolies incentivizes innovation, which benefits the country.
• Requiring inventors to publicly disclose how their invention works promotes public knowledge.
• Ensuring that inventions eventually become available for public use and balancing public and private interests. 

What does a patent protect?

Just as copyright laws protect works of art, performances, and literature, patent law protects inventions. To qualify for a patent, the invention must be new, useful, and non-obvious (more details on this to follow). You can’t apply for a patent for sliced bread, but you may apply for a patent for a new and improved version of Otto Rohwedder’s bread-slicing machine. 

Patent protections are not only for machines, though. They apply to processes, products, compositions of matter, software, or improvements to any of the above. 

Types of patents

There are three main type of patents that protect three different types of inventions: 

Utility patents

This is the type of patent people think of most when they think of inventions. Whether it’s a machine that shrinks the kids, a lively green polymer slime, or—more realistically— a phone that can access the internet, a utility patent covers new, useful, non-obvious machines. Perhaps less commonly known is that utility patents also cover unique systems and processes, such as those used in manufacturing. 

Design patents

A design patent protects only the appearance of a product. For example, the Coca-Cola bottle “hobbleskirt” design was first patented in 1916 so that no other soda company could use that exact shape. The contoured design doesn’t change the function of the bottle (we drink out of it just the same), but it is a large part of the visual brand identity (which is now trademarked) that they wanted to protect. 

Plant patents

This type of patent protects new plants produced by cutting, grafting, or other asexual methods. The inventor has to be able to reproduce a new, distinctive plant to qualify for a patent. The first plant patent in the U.S. was issued to Henry Bosenberg in 1931 for his “New Dawn” climbing rose. Its prolific “everblooming” flowers set it apart from existing roses. 

There are other specialized patents that protect inventions that don’t fall under the main three types. These can include biological inventions, business methods, and software. 

Patent eligibility criteria

Patents have specific, stringent requirements; they have to! The USPTO has to ensure that inventors have full exclusive rights to their invention, design, or plant. To successfully obtain a patent, your invention must be: 

• Novel. You can’t reinvent the wheel and call it yours.  
• Non-obvious. The invention must not be obvious to someone skilled in the field. 
• Useful. It has to be something practical that people can and will actually use.
• Tangible. It can’t be an idea or a theory; it has to be a machine, a manufactured item, a process, or a composition of matter.

If your invention is not completed yet, you can apply for a provisional patent to protect it while you continue developing and fine-tuning it.  

The patent application process: What to expect

If you’re ready to apply for a patent, here’s a general overview of the application process: 

• Research. Conduct a patent search to make sure your invention is not already patented.  
• Prepare the application. If the patent search comes up clear, you can proceed to prepare the patent application. A patent attorney can help make sure you choose the correct patent application. 
• Review. Have your patent attorney or agent review your application and suggest changes. It’s much easier to make corrections before you file. 
• File. Follow the instructions to submit your application and all patent drawings to the USPTO (or have your agent file for you).
• Wait. Once you’ve filed, all that’s left to do is wait for the USPTO to review the application for compliance with legal requirements. Watch your inbox carefully–you may receive an office action that you need to address.
• Celebrate. If approved, the patent is granted and published, and you are officially a patent owner! 

If you’re feeling intimidated and/or you need to get it done quickly, hire one of LegalZoom’s expert attorneys to help you file today. 

New developments in patent law

The provisional patent is especially important in light of the Leahy-Smith America Invents Act (AIA) of 2011. Under this new law, the first inventor to file a patent application is granted the patent. Before 2011, the law favored the first person to create the invention. 

What does that mean for inventors? If you have an invention in the works, it’s best to file a provisional patent before some other great mind does. That said, if you have substantial evidence that someone who filed first derived their invention from yours, you can request proceedings within one year of filing. 

FAQs 

Do I need a lawyer to get a patent?

The U.S. Patent and Trademark Office recommends using a registered patent attorney to navigate the complex patent process, but you can also do it yourself, known as “pro se.” 

What happens if someone infringes my patent?

If someone willfully infringes your patent, it is within your rights as the patent holder to take legal action against them. A cease and desist is usually a starting point, demanding that they stop infringing on your intellectual property. If that doesn’t stop them, you can sue for damages, including legal fees. 

What’s the difference between a patent and a trademark?

A patent protects an invention, and a trademark protects a brand’s name, logo, etc. For example, Volvo has a patent on its three-point seatbelt and a trademark on its name and logo. They allow all car manufacturers to use the seatbelt patent, but not their trademarked logo or name. 

Is there an international patent?

There’s not a true international patent, but the Patent Cooperation Treaty (PCT) allows you to file an application with the WIPO (World Intellectual Property Organization), which can offer some protection in participating countries.