Your First Patent – Some Things You Need to Know
You have your eureka moment – an idea for the greatest invention ever. Of course, then comes the realization of what to do next? After you stop counting your future millions, you should be thinking about patent protection. As a first time inventor, it is critical to know how a patent can and cannot benefit you.
It is essential to understand that obtaining a patent is the government providing you the right to exclude others from making, using, or selling your invention, as embodied in the claims of the patent. It is essentially your right to a monopoly of your invention for a set period of time, in exchange for the invention being given into the public domain once the patent lapses. Your patent does not provide you with any right or protection in producing your own products, In fact, in producing your own product, you may be infringing on the patents of others, regardless of whether you have obtained your own patent coverage for that product.
Once you have your idea, it’s essential to file an application for a patent as soon as you are able. The reason is two-fold – first, in 2013 the US moved from a first to invent to a first to file system under the provisions of the America Invents Act (AIA). Prior to the AIA, when there was a discrepancy over two patent applications trying to patent essentially the same subject matter, the inventor that was able to demonstrate the earliest date of invention was given preference in the patent process. Under the new AIA rules, the first person to file a patent application with the patent office, regardless of whether or not their invention date beat their competitor, has preference. Second, if you wait too long to file your application, regardless of whether there is a competitor lurking, you could actually lose your rights to patent your invention. This could be the case if you publically disclosed, demonstrated, or offered for sale your invention more than 1 year prior to filing for a patent.
Once you decide to file for a patent, there are many different options and filing strategies depending on what or how much you are trying to protect. For example, should you file a regular patent application or will a provisional patent application be sufficient? Is more than one application needed to protect my idea(s), or can I file comprehensive application covering the entire ecosystem of inventive concepts? Procuring a patent portfolio a big investment of your time and financial resources It is recommended that you consult a patent professional to discuss most effective strategy for your needs. While there are some who brave the waters of the patent office on their own, please remember that your actions and inactions during the patenting process may affect the value and usefulness of any patents granted in the years to come in ways that you might not expect or foresee.
Even after you file a patent application, know that this is not the end of your journey. The length of time that the patent is being prosecuted can vary greatly, but 3 year or more is not form filing to grant is not uncommon. It is also important to understand that filing a patent application provides you with no legal rights. That right to exclude others from benefiting from your ideas is only effective when the patent application, after undergoing the examination process, is allowed, and issued as a granted US patent. After filing and up to the time when the application issues as patent (or the application becomes abandoned), the application is often referred to a pending patent, or patent pending. You should know that during the pendency of the patent application, any products that you make that are covered by the patent application maybe marked as patent pending. While patent pending does not confer any type of legal protection, it does serve as a warning to potential infringers that if and when a patent is issued, they could be subject to legal action and liable for damages. But remember an application cannot be enforced, only a granted patent. Once the patent has been granted, the owner of that patent may now take enforcement action on potential infringers.
Remember that infringement requires that a product or service perform each and every element of at least one of the claims in the issued patent. Describing a product in the body of the patent is not sufficient to show infringement. With a well though-out and executed patent strategy, you will hopefully be able to develop a patent portfolio that protects your ideas and allows you to realize some financial rewards.