You have been tinkering in your garage for months and have finally had your Eureka! moment: you have invented an improvement to the bicycle seat to make recreational riding far more comfortable. You believe your invention is completely new and has the potential to be a successful product. But before you tell anyone about your awesome creation, your protective instinct kicks in and you start researching information about how to protect your invention. You need a patent!
Why Protect an Invention?
Your instincts are spot on! In order to profit from your ideas, you need to secure the appropriate form of legal protection. By protecting your invention, you – the true inventor – are in a position to control who can profit from it and who cannot. If your invention has commercial value, with adequate protection, you increase your ability to be compensated for efforts in conceiving and developing your idea.
If you watch the show Shark Tank, you may have noticed that “Shark” Lori Greiner always asks the aspiring entrepreneurs whether their product has been patented!
What Exactly is a Patent?
A patent is a grant from the federal government that gives the inventor the legal right to exclude others from making, using, and selling the invention for a limited time. Essentially, it is a “contract” between the inventor and the government: in exchange for full disclosure of the invention in the patent application, the government provides you with a “limited monopoly” to exploit or commercialize – make, use, and sell – the invention.
The goal of granting patents to inventors is to encourage them to spend time and resources on the innovative process and bring new and useful discoveries to the marketplace. Once the patent term expires, the invention immediately enters the public domain and remains there as a public benefit. Patents are granted by the government through the U.S. Patent and Trademark Office (USPTO).
What Can be Patented?
Patents protect useful inventions. They must have some utilitarian value and have a functional purpose. Specifically, an invention must meet the following five requirements before it can be patented:
- Patentable subject matter
Patentable Subject Matter
There are four categories of inventions that Congress has deemed “appropriate” subject matter for patent protection. These include:
- Articles of manufacture
- Compositions of matter
The latter three — machines, articles of manufacture, and compositions of matter — define products, whereas a process defines an action (e.g., inventions requiring various steps to be performed).
A new TV would be a machine invention (a machine is defined as a concrete thing consisting of various parts or devices – note that all mechanical devices are machines). Shovels, erasers, and mouse-pads would be articles of manufacture (something created by taking raw or prepared materials and giving them new forms, qualities, or properties). And a new pharmaceutical product – a new drug – is a good example of composition of matter (a composite article consisting of two or more intermixed substances).
Almost every type of invention falls under one of these four categories.
However, there is subject matter that cannot be patented. Non-patentable subject matter includes abstract ideas (e.g., a mathematical theory or algorithm), laws of nature (e.g., the law of gravity), and physical phenomena (e.g., products of nature such as a naturally growing plant — a dandelion).
To be regarded as useful, an invention or improvement must contain some identifiable benefit from its purpose. In the above example, the bicycle seat not only is an improvement, but also provides added comfort to the rider. The identifiable benefit is the added comfort.
To be regarded as “novel,” an invention must be new. There are many reasons why an invention will not be considered new, and therefore, not novel, even if it is new to a particular inventor. Examples include the following:
- The invention was known to the public before a patent application was filed.
- The invention was described in a publication (probably a technology or other scientific journal/magazine, and the like) more than one year before the application was filed.
- The invention was already being used in the public before an application was filed.
In short, if people already know about the invention and have been using it, even if you didn’t realize it, it is probably not new and cannot be patented.
Nonobvious asks the question: Would someone with “ordinary skill in the art” feel this invention or improvement was obvious? One with “ordinary skill in the art” is considered someone with a normal level of skills and knowledge in a particular field – not a high-level expert. If the invention is reasonably predictable, it is probably obvious and thus not patentable subject matter.
As such, if an invention is unpredictable to a skilled person, it is probably nonobvious.
The enablement requirement assures that every filed patent application provides sufficient information for one with “ordinary skill in the art.” The application must contain enough detail to “enable” someone to make the invention in the “best mode” possible, or the most practical way to build and/or create it. In the case of your bicycle seat improvement invention, one with “ordinary skill in the art” would be a bicycle seat designer or manufacturer.
Caveat! Even if it consists of patentable subject matter, an invention that has been sold or offered for sale prior to the filing of a patent application is no longer eligible for patent protection.
What is the Scope of the Patent?
Patent rights are federal rights; states do not have their own patent registration system. Once patent rights are granted, they are enforceable throughout the United States, regardless of the state you live or do business in. A United States patent is not enforceable outside of the United States.
It is important to note that patent rights do not mature – they do not vest in the inventor — until the patent is actually GRANTED. You have probably heard an inventor say “My patent is pending …” or have seen the term “Patent Pending” on certain products. These phrases indicate that the patent is just that … PENDING. The legal right to exclude others from making, using, and selling your invention is only granted once the U.S. Patent and Trademark Office issues the patent.
Submitting an application does not guarantee that you will be granted a patent. Approximately 2/3 of patent applications ultimately become registered patents.
How Long Does the Patent Last?
The patent term – the time you have the “limited monopoly” — depends upon the type of patent you have. Traditionally, there are three primary types of patents: utility, plant, and design.
- Utility Patent Term: 20 years from date of filing
- Plant Patent Term: 20 years from date of filing
- Design Patent Term: 14 years from date of grant
“From date of filing” means the expiration date of the patent is measured from the date you filed your patent application with the U.S. Patent and Trademark Office. Hence, if you filed a patent application for your bicycle seat invention on May 5, 2012, assuming your application becomes a registered patent, your term of protection will last for 20 years, or until May 5, 2032.
“From the date of grant” means the expiration date of the patent is measured from the date the USPTO issues your patent. If your patent application for your bicycle seat invention is granted on September 7, 2014 (yes, more than a year later), your term of protection will last 14 years, or until September 7, 2028.
Be sure to note the distinction between “from the date of filing” and “from the date of grant” for utility and plant patents on the one hand and design patents on the other. Until June 8, 1995, the patent term for utility and design patents was 17 years from the date of grant.
The Bottom Line
Federal patent protection in the United States is available for new, useful, and nonobvious inventions that have not been sold or offered for sale. By granting inventors a limited commercial monopoly to make, use, and sell their inventions, creativity and innovation is encouraged, promoted, and celebrated. The more new and useful discoveries are brought to the public marketplace, the greater the benefit to humankind.
Enjoy the ride — the bike ride that is!