What Is a Patent, and How to Use It

What Is a Patent, and How to Use It

by Joe Runge, Esq., August 2017

What is an invention? What is a patent? And, for that matter, what does patent mean and what does a patent do? When something is patent pending, what's happening?

A working patent definition is essential for any entrepreneur who wants to make a product. The best definition comes from answering two questions: "Is my invention the kind that can be patented?" and "Will a patent help me protect my product?"

1. Is My Invention the Kind That Can Be Patented?

Invention is a broad word. Your invention can be a new dog toy, a better recipe for buttercream, or a life-saving pharmaceutical. Patent law needs to create a set of rules that can govern all inventions people can make. It is miraculous that laws created in the 1950s can even apply to the latest technologies: nanochemistry, quantum computers, and fidget spinners.

One reason why patent law is so robust is its broad categories of inventions. In order to patent your invention, it must be one of the following:

  • Process: A process is a series of steps to bring about a useful result. Process patents often describe ways of making things, like an assembly line. Processes also describe complex systems like telecommunication platforms or computers with integrated software.
  • Machine: A machine is made of parts. Your lawnmower, your smartphone, or even your toothbrush—all of them are patentable inventions.
  • Manufacture: A manufacture is a new material made by the combination of one or more other materials. Think concrete or drywall—if you change the recipe and create a new kind of manufactured material, then you have a patentable invention.
  • Composition of Matter: Where a manufacture combines existing materials, a composition of matter is a new kind of material. Think a new kind of drug with a unique chemical structure or a new kind of plastic. Compositions of matter often require advanced understanding of chemistry or materials science and a lot of hours in the laboratory to create.

Inventions that fall outside these categories—whether recipes, scientific discoveries, or abstract mathematics—are not patentable.

The first step to knowing what patents are is to know if you have a patentable kind of invention. However, just knowing if your invention is patentable is only part of understanding what a patent is.

2. Will a Patent Help Me Protect My Product?

Before you ask how to patent a product, you first need to decide if you should patent your product. A patent gives the patent holder a specific set of rights to enforce. Patents are hard to get, so make sure that patent rights are the rights that you need.

A patent gives the inventor the right to stop infringers from making, using, selling, offering to sell, or importing your invention. The usefulness of these rights depends on the nature of your invention and your plan to turn it into a product.

If your patent is for a new toothbrush design, then your patent is going to be really helpful. Your invention has a specific configuration of parts. If your competitor makes a similar toothbrush with the same parts in the same order, then it will be simple to prove patent infringement.

If, however, your invention is a new method for making toothbrushes, that patent may not be so helpful. It may not be possible to determine how a toothbrush is made simply by looking at it. To prove infringement, you'll have to do more than point to the toothbrush on the shelf at the store. You may have to actually prove the factory is using your process—and it's not likely that an infringer is going to invite you in to investigate.

You also will see references to products that are patent pending. This means that, while the patent application has been filed, it has not yet been issued. You know only that the investor is seeking patent protection; you cannot tell the scope of the patent or if a patent will be issued.

So, what is a patent? A patent provides the rights that give you sole control over your invention. To get one, you have to invent one of the kinds of inventions recognized by law. Once you know you have a patentable product, then you can decide if it is the right protection decision for you and for your product.