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Patent FAQ

By
Lia Kopin-Green
/
November 10, 2022
Last reviewed by
Boruch Burnham, Esq.
/
May 24, 2023

All patent application processes begin with the most crucial step: creating an invention. However, if you want to make sure that no one else will use or sell your invention without your permission, you will need to seek legal assistance to register your patent with the United States Patent and Trademark Office (USPTO).

Not sure where to start? Check out some of the most frequently asked questions about patents in the United States.

1. What is a patent?

In exchange for complete disclosure of an invention, patents provide the inventor or creator of a product or service with the exclusive rights to its unique process, design, or system and the sole authority to prevent others from using, manufacturing, or selling the invention without their permission. 

According to U.S. intellectual property law, an invention or service must be non-obvious, useful, and novel to be eligible for a patent. Patent applications are processed, approved, and administered by the United States Patent and Trademark Office (USPTO), a government agency within the U.S. Department of Commerce.

2. Who can apply for a patent?

The USPTO grants patents to one who “invents or discovers any new and useful process, the machine, manufacture, or composition of matter, or any new and useful improvement thereof.” Moreover, it is only possible to apply for a patent in the name or names of the actual inventor or inventors.

3. What cannot be patented?

As stated above, an invention or creation is eligible for patent protection if it is non-obvious, useful, and novel. An invention will not be patentable if:

  • Before the patent applicant created it, it was known, used, patented, or described by others in the United States.
  • It was patented or described in a printed publication anywhere in the world more than one year prior to the inventor’s actual filing date of the patent application.
  • It was in public use or on sale in the United States more than one year prior to the inventor’s actual filing date of the patent application. 

A few common examples of things that cannot be patented include naturally occurring substances, laws of nature, and calculation methods.

4. Are there different types of patents in the U.S.?

There are three main types of patents in the U.S.

  1. Utility patents are the most common type of patent. These patents cover the creation of a new or improved useful product, process, or machine. Machines such as engines or computers, as well as compositions of matter such as pharmaceutical medications, are examples of inventions that may be protected by utility patents. Note that utility patents are subject to maintenance fees that must be paid at intervals of 3.5 years, 7.5 years, and 11.5 years from the date the patent was granted.
  2. Design patents protect the decorative design of an article of manufacture. They are typically granted to protect new and nonobvious ornamental designs for items with practical utility, such as cars, furniture, and product packaging, as well as jewelry and other fashion accessories that derive their utility from being items of personal adornment.
  3. Plant patents protect new, useful, and distinct varieties of plants that are asexually reproduced. In this context, “asexually reproduced” means that the plant is not propagated through the use of seeds but rather through the use of cuttings, grafting, etc.

5. How long does patent protection last?

As a general rule, utility and plant patent terms last for 20 years from the patent application's application, and design patents last for 15 years from the date the patent was granted, subject to certain extensions.

To calculate your specific patent term expiration, you may use the USPTO’s patent term calculator or consult with an attorney with experience in intellectual property law practice.

6. How much does it cost to obtain a patent?

While patents provide valuable protection for inventions and creations, they often come at a high price. You can expect to pay anywhere between $1,000 and $10,000 from start to finish. Some may even pay up to $20,000 in fees throughout the process. Exact patent application costs vary heavily depending on the type of patent required, the complexity of the invention, and the size of the business or entity filing the patent application. Total patent application costs are also affected by the number of Office Actions filed throughout the process since there are additional fees involved in responding to Office Actions.

7. How long does it take to obtain a patent?

Regardless of the type of patent application filed, there is no guarantee that you will receive patent approval within a specific timeframe. Nevertheless, the average time to obtain a design patent is between one and two years. Regarding utility patents, it may take up to 5 years from the actual filing date to receive official approval.

8. Do I need a lawyer to file a patent application?

You do not need a patent attorney to apply for a patent, and you may choose to file your application independently. However, it is highly recommended that you work with a skilled attorney with extensive experience practicing intellectual property law. Patent law is a highly technical legal field, and the process of drafting a patent application and having it approved on your own can be incredibly difficult, even for the most simple of inventions.

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