Patenting An Idea: What You Need To Know

There are three types of patents available to individuals and businesses. First, those interested in protecting new and unique asexually reproducing plant species and hybrids may file for plant patents. Second, those wishing to safeguard designs of existing manufactured products and processes may consider filing for design patents. And finally, nine out of every ten patent applicants will opt to file for utility patent protections in order to ensure the proprietary nature of their manufactured products, processes and ideas.

Once the correct patent type has been identified, it is time to decide whether to file provisionally or non-provisionally.

Provisional Vs. Non-Provisional Patents

If you are planning to file for a design patent, you only have one type of application available to you. But if you are planning to file for a utility patent, you have two application options available. When the United States Patent and Trademark Office processes patent applications, it grants each request a filing date. This filing date is critical because it is the date that the USPTO will essentially start granting an affected product, process, design or idea protection in the event that a formal patent is eventually granted. This date therefore allows the patent holder a reference point upon which protections may be enforced in court.

The filing date is also critical because when prior art threatens to infringe upon the novelty of the product, idea, design or process in question, the USPTO evaluates the creation of that prior art against the filing date. Practically speaking, this means that the more quickly a patent applicant secures a filing date, the more secure that applicant may rest in the novelty of a creation and the potential for enforcement against any eventual attempts at infringement.

When an individual or business files a non-provisional application, the filing date is secured automatically because this application type formally requests patent protection. This is the only option available to applicants for design patents. Utility applicants may also file a provisional form up to 365 days before filing a nonprovisional request. A provisional application will allow an individual or business to secure a favorable nonprovisional filing date while granting the applicant extra time to formalize their formal, nonprovisional request.

The Patent Application Process

The nonprovisional patent application process is especially intricate and time-consuming. It is important to understand that any incorrect or incomplete elements of an application may lead to its rejection. Given how critical it is for an applicant to secure protections in accordance with an application’s initial filing date, it is best to avoid preventable rejection whenever possible. As a result, it is generally a good idea for both individuals and businesses seeking patent protection to work with legal counsel experienced in intellectual property matters as they prepare to file their applications.

When compiling necessary information for an application, write down every detail that could possibly impact the filing. Dates of improvements to the product, prototype drawings, research notes, etc., may all help to ensure that the USPTO ultimately determines that a product, process, idea or design is novel, non-obvious and (when required) useful. Aiding your attorney by providing all potentially relevant information will be very helpful to the process of compiling and filing your application.

It is worth noting that if for some reason your application is rejected twice, you may be able to appeal the USPTO’s original determination. Your attorney will be able to assist you with the appeals process. Similarly, if you feel the need to amend your application before it has been formally reviewed, your attorney will be able to assist you with the amendment process.

If filing a patent doesn't work out, other avenues to explore may be copyright, trademark and trade secret rights. I believe that creative work is uniquely valuable and should be protected under the law.

The information provided here is not legal advice and does not purport to be a substitute for advice of counsel on any specific matter. For legal advice, you should consult with an attorney concerning your specific situation.

Source: Forbes.com