What is a utility patent?
A utility patent is a type of patent that covers the invention of a new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof. In order to qualify for a utility patent, an invention must be novel (not obvious), and must have been reduced to practice (actually implemented). If you have an invention that meets these criteria, it is important to understand the basics of the United States Patent and Trademark Office’s (USPTO) utility patent examination process.
In this blog post, we will discuss what you need to know in order to obtain a utility patent for your invention.
What Does a Utility Patent Protect?
A utility patent protects the way an article is used and works. It can also protect the design of functional items. To get a utility patent, you must show that your invention is new, useful, and non-obvious.
You can file a utility patent to protect:
- Inventions that make things work in a new or improved way
- New designs for products
- Improvements to how an existing product works
A utility patent covers the “functional” aspects of an invention and prevents others from making, using, or selling your invention without your permission. Once you have a utility patent, you can sue someone who infringes on your rights. You may be able to get damages and royalties from the infringer.
For How Long Does a Utility Patent Protect an Invention?
A utility patent lasts for 20 years from the date you first file your application with the USPTO. However, you will need to pay maintenance fees at regular intervals to keep your patent in force. If you do not pay the fees, your patent will expire and anyone will be able to make, use, or sell your invention without your permission.
Types of Patents
There are three types of patents: utility patents, design patents, and plant patents.
Utility Patents
Utility patents are the most common type of patent. They protect the way an article is used and works. Design patents protect the way an article looks. Plant patents protect asexually reproduced plants.
Utility patents are the most common type of patent issued by the USPTO. In 2021, over 68% of all patents issued were utility patents.
A utility patent may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof. The term “utility patent” is often used to refer to both utility patents and design patents.
Design Patents
Design patents are issued for a ornamental design of an article of manufacture. A design patent protects the way an article looks, but not the way it works. Design patents are granted to anyone who invents a new, original, and ornamental design for an article of manufacture.
In 2021, over 12% of all patents issued were design patents.
Plant Patents
Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant. Plant Patent applications are examined in the same way as utility and design patent applications. However, the claims in a plant patent are directed to the novel characteristics of the plant, not to any particular process or machine for producing the plant.
In 2021, over 27% of all patents issued were plant patents.
These three types of patents are all valid for 20 years from the filing date, but require maintenance fees to be paid at regular intervals to keep them in force.
Patentability: What is Patentable?
The term “patentable” refers to the potential of an invention to be patented. To be patentable, an invention must meet certain requirements set forth by law. These requirements include novelty, usefulness, and non-obviousness.
To be considered novel, an invention must be new and differ from prior art in at least one substantial way. To be useful, an invention must serve some purpose and provide a tangible benefit. And to be non-obvious, an invention must offer some new and unexpected benefit that is not immediately apparent to others. If an invention meets all of these requirements, then it is patentable.
The Novelty Test:
An invention is only patentable if it is new. This means that the invention must not have been previously known or used by others. To determine whether an invention is truly new, a search of “prior art” is conducted. Prior art includes any previous patents, published books or articles, and public knowledge. If the prior art search reveals that the invention is not new, then it is not patentable.
To be considered novel, an invention must also differ from prior art in at least one “substantial way.” This means that the difference between the invention and prior art must be significant enough that it would be considered important by someone in the field. Merely making a small change to an existing product will not make it patentable.
The novelty requirement is important because it encourages innovation by giving inventors the incentive to create new and improved products. If an invention is not truly new, then it is not worthy of a patent.
The Usefulness Test:
In order for an invention to be patentable, it must be useful. This means that the invention must serve some purpose and provide a tangible benefit. An invention that does not work or serve any purpose cannot be patented.
To determine whether an invention is useful, the courts will consider whether the invention is capable of performing the function for which it was intended. They will also look at whether the invention provides a new and improved way of doing something. Simply making an existing product slightly more efficient is not enough to make it patentable. The improvement must be significant enough that it would be considered important by someone in the field.
The usefulness requirement is important because it ensures that only inventions that actually work can be patented. This helps to protect the public from useless products that might not work as advertised.
The Non-obviousness Test:
In order for an invention to be patentable, it must not be obvious to someone skilled in the relevant field. This means that the invention must offer some new and unexpected benefit that is not immediately apparent to others. If the invention is something that could easily be conceived by someone in the field, then it is not patentable.
To determine whether an invention is non-obvious, the courts will consider whether the invention would have been obvious to someone with ordinary skill in the relevant field at the time of its creation. They will also look at whether there was anything unique about the inventor’s approach that led to the invention. Simply coming up with a new use for an existing product is not enough to make it patentable. The invention must offer some new and unexpected benefit that others would not have easily thought of.
The non-obviousness requirement is important because it encourages innovation by giving inventors the incentive to create truly unique and innovative products. If an invention is obvious to someone skilled in the relevant field, then it is not worthy of a patent.
What is the Utility Patent Examination Process?
If you have an invention that you believe is novel and non-obvious, you may want to consider applying for a utility patent. The USPTO can help you determine if your invention meets the requirements for protection.
The first step in getting a utility patent is to come up with an idea for something that meets certain criteria: it must be new, useful, and not obvious to someone “skilled in the art” (in other words, someone who know about things already patented in your field).
If you think you’ve got something that meets those qualifications, the next step is to file a patent application with the U.S. Patent and Trademark Office (USPTO).
There are three types of patent applications: utility patents, design patents, and plant patents. Utility patents are the most common type—and the kind we’ll be discussing here. Design and plant patents have their own specific sets of requirements, so if you think you might need one of those, it’s best to consult with a patent attorney or agent.
The USPTO website has a ton of resources to help you figure out if your idea qualifies for a utility patent, and if so, how to go about applying.
Once you’ve decided to file a utility patent application, the next step is to actually write the application. This is where things can get a little tricky, because there are specific requirements for what needs to be included in a utility patent application.
If you’re not comfortable writing the application yourself, you can always hire a patent attorney or agent to do it for you. But even if you decide to go that route, it’s still important to have a general understanding of the process and what’s required in a utility patent application—that way, you can be sure that your attorney or agent is including everything that needs to be there.
Here’s a quick overview of what needs to be in a utility patent application:
First, there’s the cover sheet, which just has some basic information about you, your invention, and who’s filing the application.
Next is the specification, which is where you describe your invention in detail. The specification must include a description of how to make and use your invention, as well as any “best mode” you have for doing so.
The specification also needs to include “ drawings,” or pictures, of your invention—these can be either physical drawings or photographs. In some cases, it might even make sense to include both.
After the specification, there’s the claims section. This is where you state what your invention is and what parts of it you want to protect with your utility patent.
Last but not least, there’s the oath or declaration, which is just a statement from you (the inventor) that everything in the application is true and accurate to the best of your knowledge.
Once you’ve got all of that together, you’re ready to submit your application to the USPTO. They will assign a “patent examiner” to your case, who will review your application to make sure it meets all of the necessary requirements.
If everything looks good, the examiner will “allow” your application and you’ll be on your way to getting a utility patent. If there are any problems with your application, the examiner will “reject” it and give you a chance to fix the issues.
Once your application is allowed, you’ll need to pay a fee and submit some additional documents before the USPTO will issue your utility patent. The term of a utility patent is 20 years from the date of filing, so if everything goes smoothly, you could be protected for quite awhile.
What if My Patent Application is Rejected?
If your patent application is rejected, you have a few options.
- You can file a request for continued examination (RCE), which gives you another chance to amend your claims and argue your case.
- You can also file an appeal with the Board of Patent Appeals and Interferences (BPAI).
- Finally, you can file a civil action in federal district court.
Of course, the best option is to avoid rejection in the first place. To do that, you need to make sure that your invention meets all the requirements for patentability.
- First, it must be new and non-obvious.
- Second, it must be useful.
- Third, it must be capable of being made or used in some kind of industry.
- Fourth, it must not be a law of nature, a natural phenomenon, or an abstract idea.
Advantages and Disadvantages of of Utility Patents
There are several advantages to obtaining a utility patent:
- It encourages innovation
- It allows the inventor to exclude others from making, using, or selling the invention for a period of time
- -It gives the inventor the right to sue anyone who infringes on the patent
- -It can be used as collateral to obtain funding
- -It can increase the value of a company
There are also some disadvantages to obtaining a utility patent:
- The application process can be costly and time consuming
- The patent only lasts for 20 years
- The patent may not be granted if the invention is not new or is not considered to be an improvement on existing technology
- The patent may not be granted if the invention is obvious to someone skilled in the art
- The patent application and any resulting patents are public information, which can give competitors a head start in developing similar products.
Overall, utility patents can provide a lot of protection for inventors. However, there are also some significant disadvantages that should be considered before deciding to pursue a utility patent. Patents are complex legal documents, so it is always advisable to consult with a qualified patent attorney before filing a patent application.
Exceptions and Limitations to Patent Rights
There are three common exceptions to patent rights in the United States: experimentation, repair, and emergency use.
Experimentation
Experimentation is allowed on a patented invention, so long as it is for research purposes and not for commercial gain. This exception allows scientists and researchers to study how a patented invention works and try to improve upon it.
One famous case of experimentation involved the polio vaccine. Scientists studying the virus needed to experiment on the patent-protected cells in order to learn how they worked and develop a vaccine. The Supreme Court ruled that this was allowable under the exception, since the purpose was for research and not commercial gain.
Repair
Another common exception is repair. If a product breaks, you are allowed to fix it without violating patent rights, even if doing so requires using parts covered by the patent. For example, if your car engine breaks and you need to replace the part covered by a utility patent, you can do so without having to get permission from the patent holder.
This exception is important because it allows people to keep using products they have purchased, even after the patent has expired. For example, if you buy a car that is 20 years old, the patents on many of its parts will have expired. But under the repair exception, you can still get those parts replaced if they break.
There is one caveat to this exception: you can only repair products that you own. You cannot repair someone else’s product and then sell it back to them (or anyone else). That would be considered commercial use, which is not allowed under this exception.
Emergency Use
The final exception is emergency use. This allows people to use a patented invention without the patent holder’s permission in order to address an emergency situation. For example, if there is a drug with a patent that is the only treatment for a deadly disease, someone could produce it without the patent holder’s permission in order to save lives.
This exception is important because it allows life-saving treatments to be used even when the patent holder is not able or willing to provide them. It also ensures that people can get access to critical medical treatments in times of need, even if they cannot afford to pay for them.
These are just three of the most common exceptions to patent rights in the United States. There are other, less common exceptions as well. But regardless of the exception, all uses of a patented invention must be for a non-commercial purpose. If you want to use a patented invention for commercial gain, you will need to get permission from the patent holder first.
Conclusion
Utility patents are one of the most important types of patents. They protect the functional aspects of an invention and can be obtained for a wide variety of products and processes. A utility patent is typically granted for 20 years from the date of filing, but this term can be extended under certain circumstances. To obtain a utility patent, an inventor must file a patent application with the USPTO and demonstrate that their invention is new, useful, and non-obvious.
Patents are a critical part of any business’s intellectual property strategy. If you have invented something that you believe has commercial potential, you should consult with a qualified patent attorney to discuss your options.
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