Key Takeaways
- A patent protects inventions: It gives inventors the legal right to prevent others from making, using, selling, or importing their patented inventions in the United States.
- There are three main types of patents: Utility patents protect functional inventions, design patents protect ornamental appearances, and plant patents protect qualifying plant varieties.
- Provisional applications provide temporary filing benefits: They establish an early filing date and allow inventors to use “patent pending,” but they do not grant patent protection.
- Patent protection has time limits: Utility and plant patents generally last up to 20 years from the applicable filing date, while newer design patents generally last 15 years from issuance.
- The patent application process requires preparation: Inventors must research existing inventions, submit an application to the USPTO, and complete the examination process before receiving patent protection.
If you have created a new product, developed an innovative process, or designed something original, you may be wondering how you can protect your invention from unauthorized use.
A patent is one form of intellectual property protection available in the United States. It can give an inventor the legal right to exclude others from making, using, offering for sale, selling, or importing the patented invention in the United States for a limited period. The United States Patent and Trademark Office (USPTO) is responsible for examining patent applications and issuing patents.
Understanding how patents work can be particularly important for entrepreneurs and small business owners whose products or technology are an important part of their business.
What Is a Patent?
A patent is a government-granted property right that provides an inventor with certain exclusive rights over a qualifying invention.
It is important to understand that a patent does not automatically give the owner permission to manufacture or sell an invention. Instead, the patent generally provides the right to exclude others from certain activities involving the patented invention within the scope of the patent.
U.S. patent protection is generally limited to the United States, its territories, and possessions. Protection in another country generally requires pursuing the appropriate intellectual property protection there.
The Three Main Types of U.S. Patents
The USPTO recognizes three basic categories of patents: utility, design, and plant patents. Each protects a different type of innovation.
Utility Patents
Utility patents are the most common type. They can cover a new and useful:
- Process
- Machine
- Article of manufacture
- Composition of matter
- Improvement of an existing invention
For example, an invention involving a new mechanical device or a new manufacturing process may potentially qualify for utility patent protection if it meets the applicable legal requirements.
Design Patents
A design patent focuses on the ornamental appearance of an article of manufacture rather than its underlying function.
In other words, utility protection generally concerns how an invention works, while design protection concerns how a qualifying manufactured article looks. In some situations, an article may potentially receive both types of protection.
Plant Patents
Plant patents apply to certain new and distinct plant varieties that are invented or discovered and capable of asexual reproduction.
The USPTO explains that plant patents can protect qualifying plants from unauthorized asexual reproduction, sale, or use within the United States.
What Is a Provisional Patent Application?
You may hear people refer to a "provisional patent." Technically, a provisional application is not a patent.
A provisional patent application is an application that can establish an early U.S. filing date for an invention. It is available for utility and plant inventions, but not for design inventions. A provisional application is not examined on its merits and automatically expires 12 months after filing.
During that period, an inventor can use the term "patent pending." However, the provisional filing does not itself result in an issued patent.
If the inventor wants to pursue patent protection based on the provisional application, a corresponding nonprovisional application generally needs to be filed within the applicable 12-month period.
How Long Does a U.S. Patent Last?
Patent terms depend on the type of patent and other circumstances.
Generally, utility and plant patents have a term of up to 20 years from the applicable filing date, subject to factors such as maintenance fees for utility patents and possible adjustments or extensions.
Design patents have a different term. For design applications filed on or after May 13, 2015, the term is generally 15 years from the date of grant. Older qualifying design applications may have a 14-year term.
Because patent terms can be affected by specific circumstances, inventors should consult the USPTO or a qualified patent professional when determining an individual patent's expiration date.
How Does the Patent Application Process Work?
Obtaining a patent can involve several stages. The USPTO's current process includes determining whether patent protection is appropriate, researching similar inventions, preparing and filing the application, working with a patent examiner, and maintaining the patent after issuance.
1. Research Existing Inventions
Before filing, it is important to investigate whether similar inventions have already been disclosed or patented. Searching existing patent information can help an inventor understand the relevant technology and potential prior art.
2. Document the Invention
A patent application requires detailed technical information. Depending on the type of application, documentation can include descriptions, claims, drawings, an oath or declaration, and applicable fees.
3. Choose the Appropriate Application
An inventor may need to determine whether a provisional or nonprovisional application is appropriate and which type of patent protection applies to the invention.
Because patent applications can involve complex legal and technical requirements, the USPTO recommends considering assistance from a registered patent attorney or patent agent.
4. Submit the Application
Patent applications can be filed through the USPTO's electronic Patent Center system or through other permitted filing methods, depending on the application type.
5. Examination
A USPTO patent examiner reviews the application to determine whether it satisfies the applicable requirements. The applicant may need to respond to Office actions or other communications during the examination process.
Why Can a Patent Application Be Rejected?
Patent protection is not automatic. An invention generally must satisfy applicable requirements such as novelty and non-obviousness, along with other statutory requirements.
The USPTO explains that certain subject matter, including laws of nature, physical phenomena, and abstract ideas, is outside the scope of patent eligibility.
An application can also encounter issues involving prior art, the scope of the claims, or other requirements during examination.
If the USPTO issues an Office action, the applicant generally has an opportunity to respond according to the applicable procedures and deadlines.
How Much Does a Patent Cost?
There is no single price for obtaining a patent.
Costs can include USPTO filing, search, examination, and other fees, as well as professional fees when an inventor works with a patent attorney or registered patent agent.
USPTO fees can change, and the amount may depend on factors such as the type of application and whether the applicant qualifies for small-entity or micro-entity status. For that reason, inventors should consult the current USPTO fee schedule rather than relying on an outdated dollar amount.
What Is Patent Infringement?
Patent infringement generally involves unauthorized activity that falls within the rights granted by a patent.
A patent owner is responsible for enforcing the patent rights. The USPTO explains that a patent gives its owner the right to exclude others from making, using, offering for sale, selling, or importing the patented invention within the United States.
Patent disputes can involve significant legal and financial issues. Anyone dealing with suspected infringement should obtain advice from a qualified intellectual-property attorney.
Patent vs. Trademark vs. Copyright
Patents, trademarks, and copyrights protect different forms of intellectual property.
Patent: Generally protects qualifying inventions, including certain processes, machines, manufactured articles, compositions, ornamental designs, and plant varieties.
Trademark: Generally protects names, symbols, words, designs, and other identifiers used to distinguish goods or services.
Copyright: Generally protects original works of authorship, such as literary, artistic, musical, and certain software-related works.
A business can potentially have more than one type of intellectual property protection. For example, a company might have a patent covering the technology behind a product while separately protecting its brand name through trademark law.
Can Patent Costs Have Tax Consequences?
For business owners, patent-related expenses can also raise tax questions.
Certain acquired intangible assets, including patents in circumstances covered by Internal Revenue Code Section 197, may be subject to amortization rules. The IRS currently states that qualifying Section 197 intangibles generally are amortized over 15 years.
However, the tax treatment of patent development, acquisition, legal, and other related costs can depend on the specific facts and circumstances. Business owners should not assume that every patent-related expense receives the same tax treatment.
A tax professional can review the transaction and determine the appropriate treatment under the applicable tax rules.
Final Thoughts
A patent can be an important intellectual-property tool for inventors and businesses developing qualifying innovations. However, obtaining patent protection involves more than simply submitting an idea.
The type of patent, filing strategy, technical documentation, examination process, costs, and ongoing maintenance can all affect the outcome.
If you are considering filing a patent, start by reviewing the current information available from the USPTO and consider consulting a registered patent attorney or patent agent for legal guidance.
For the tax side of patent-related expenses or business transactions, a qualified tax professional can help determine how applicable federal tax rules may affect your business.
Frequently Asked Questions
What is a patent?A patent is a U.S. intellectual-property right that can give an inventor the ability to exclude others from certain activities involving a qualifying invention for a limited period.
What are the three types of U.S. patents?The three primary types are utility, design, and plant patents.
Is a provisional application a patent?No. A provisional application is not itself a patent and is not examined. It can establish an early filing date and generally expires after 12 months unless the inventor takes the appropriate next step.
How long does a patent last?Utility and plant patents generally have a term of up to 20 years from the applicable filing date. Design patents filed on or after May 13, 2015, generally have a 15-year term from grant.
Does a patent give me permission to sell my invention?Not necessarily. A patent generally provides exclusionary rights; it does not automatically guarantee that the owner is free to make, use, sell, or import the invention. Other laws or third-party rights may apply.
Can patents affect business taxes?Potentially. Certain patents and other intangible assets may be subject to federal amortization rules, depending on how the asset was acquired and the applicable tax provisions.
This article is provided for general educational purposes and is not legal or tax advice. Patent law is complex, and tax treatment depends on the specific facts and circumstances. Consult a qualified patent attorney or registered patent agent for intellectual-property matters and a qualified tax professional for tax questions .
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