A patent gives an individual, for a set period, exclusivity to manufacture, market, and sell something without competition. As an example, intellectual property—the creation and/or invention of an object or a process—is one way that businesses and business owners can distinguish themselves. The U.S. Patent and Trademark Office (USPTO) exists to help business owners and inventors secure the rights to such property through the designation of a patent, which, for a set period, gives an individual exclusivity to manufacture, market, and sell something without competition.
What Qualifies as a Patent?
Per federal statute (35 U.S.C. § 101), anyone “who invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof,” excluding certain restrictions, such as nuclear energy used to make an atomic weapon, can apply for a patent.
- The word “useful,” in relation to patents, means both purpose and ability to operate. If you create a new machine, but it doesn’t work, you cannot apply to have it patented.
- Basic ideas cannot be patented.
- The word “new” means that an invention that is basically the same as another, except for a negligible difference, say color or size, cannot be patented.
How Long Does a Patent Last?
New patents are only good for 20 years from the date an application is filed. Once a patent expires, so does an inventor’s exclusive rights to the product or process. At that time, the invention becomes available to anyone who wishes to use the information contained in the original patent to make, manufacture, and sell the invention without recourse.
Types of Patents
The three most common types of patents are:
- Design: used by individuals who come up with “a new, original, and ornamental design for an article of manufacture,” according to the USPTO.
- Plant: available for scientists and others who create, discover, or devise a way to asexually reproduce a new species of vegetation.
- Utility: granted to individuals who conceive of new processes related to manufacturing, including the use of materials previously not considered.
Naturally, U.S. patent policy evolves along with changes in technology. For example, advances in computer-generated products and processes prompted the federal entity in late 2020 to seek public comment on whether to expand existing patent provisions to include digital designs.
Patent vs. Copyright or Trademark
Patents are different from trademarks or copyright designations in that they protect inventions that are new, novel, or considered to hold value for others, according to Lynnise E. Pantin, Pritzker Pucker Family Clinical Professor of Transactional Law at Columbia Law School and who teaches the online course “A Legal Toolkit for Starting and Scaling Your Business.”
A copyright protects creative expression, such as works by an author or musician, and trademarks ensure integrity of a brand by protecting the people who purchase an item.
A patent owner controls who makes, markets, and sells their invention and is the only person who can permit another individual or entity to make or sell the design, typically through a license.
How to File for a Patent
“If you have a competitor, for example, or you think or feel like you have a great idea that’s new and unique, don’t delay. Whoever files first gets the patent,” Pantin says.
USPTO has a step-by-step training that shows how to conduct a preliminary patent search.
Pantin recommends seeking out a patent attorney or patent agent to help file for patent protection. “There are free and low-cost patent attorneys available from the U.S. Patent and Trademark Office website,” Pantin says. “I would highly recommend that you work with an expert. This is not something that you can do on your own.”