Although new ideas can be priceless, such values are often affected by the familiarity of inventors/founders of the patent application process. When inspiration comes to an entrepreneur or inventor, there is a crucial need to patent the idea before somebody else does under today’s first-to-file requirement. As a patent attorney with over 20 years of experience in helping startups capitalize on their ideas, I hope this roadmap will provide some insight on how an individual or company can secure valuable intellectual rights for their inventions and accelerate their path to success as a unicorn.
Table of Content
Here are five basic things an Entrepreneur require to know about patents preparation
1. What is A Patent
A patent is a license that the government issues to provide the patent holder with exclusive rights to a procedure, design, or innovation for a period of time. The patent holder becomes secure from any other entity trying to get hold of their intellectual property.
2. A patent is Not given over An Idea
Without any unique personification, a common idea or plan cannot secure intellectual property. The idea needs to structure as a tangible plan or asset, either by developing a prototype or via comprehensive portrayals and illustrations for it to qualify for a patent. The key to writing a strong patent is to become an expert in your concept.
3. There are Several types of Patents
During the patent preparation, the inventor must consider the type of patent that they wish to apply for. In the US, there are three main types of patent; utility, design and plant patents. A utility patent grants the right to stop anybody else from creating, selling, or importing the invention without the consent of its inventor. A design patent protects the distinctive look of any manufactured item like furniture, containers, and clothing. Plant patents on the other hand entails new varieties of plants that are unique and produced asexually. They grow from grafting, cutting or cloning.
4. Patents Requirements Vary From Country to Country
There has been a range of different patent authorities. However, there is no particular governing organization issuing internationally applicable patents. In the United States, the mandates falls under the “United States Patent & Trade Office” (USPTO). The office provides the inventors with the option to initially file a provisional patent application. The application labels your invention as patent-pending for a year. You can determine whether your idea is marketable or not while waiting for the approval.
5. One Who Files a Patent First Wins
In the new America Invents Act, a first-to-file approach on patents prevails over first-to-invent basis. The first applicant hence receives the patent award where more than one applicant is filing for the same. However, under the revised U.S. system, the inventors can still avail a particular grace period to file their application at the USPTO.
What are the requirements for obtaining a patent?
The actual test for patentability is more complex than the sentence implies. The U.S. patent laws determines patentability. For this to happen, an invention must meet these requirements;
- The invention must prove useful
- It must be new
- It ought to comply with the statutory requirements (subject matter eligibility)
- The invention should not be obvious
Patent law requires that subject matter be useful. This means that the invention must serve a practical purpose. This requirement is more critical when patenting a drug or chemical compound. It is essential to identify a practical or specific use for the compound.
Novelty (Newness Requirement)
The patentability of an invention requires that the invention be new or unique. There exists novelty requirements that the invention must posses. They include certain public disclosures that largely contribute to the patent been given. The most important rule, however, is that an invention will not be patentable if:
- The general public knew the invention before the filing of the patent application
- The idea was first described in a printed publication prior to the applicant filing for patent protection.
- Before seeking the patent protection, a description of the invention in either a published patent application or an issued patent exists.
This exception applies to disclosures made by an inventor within one year of filing the patent application. He/she must file for patent application within a year of the first public disclosure or offer to sell the invention. This “statutory bar” is very strict. An inventor who fails to file for patent protection of his/her invention within the one-year grace period loses any rights to receive patent protection.
Subject Matter Eligibility
Section 101 defines four types of patentable inventions: processes, machines, and articles of manufacture. Patentability is denied for inventions that do not fall within any of these four categories. Data structures that cannot use a computer or any type of computer-readable media are examples of structures that one cannot claim over.
Moreover, functional descriptive material such as music, literary works, and compilations or arrangements are not eligible. This also applies to electromagnetic waves and signals hence not patentable. Similarly, a claim to a software not linked to a process or physical machine is not patentable.
To avoid this problem, experienced patent attorneys will not claim software in the abstract but within the context of a computer machine or process.
A Novel invention is different from prior products or processes. To be patentable, an invention must non-obviously improve the prior art. The invention must also not be obvious to a person with ordinary skills in the art to which the invention in question relates.
Comparing the invention to the previous one helps determine whether the differences would appear obvious to an ordinary skill- in -technology person. The invention must be apparent before filing the application as per the requirements of the statute.
Drafting the application
Drafting a patent application for a non-specialist may be challenging. This requires an in-depth knowledge of the patent laws and regulations. These are some tips to help you draft a patent application and increase your chances of it being granted.
- Do a thorough patent search before you begin to draft the patent application to understand the closest prior art. This will help you focus on how your invention is different in the description and the drawings and set up novelty expectations accordingly.
- A detailed description of your invention is required: Your patent application must include a description of the invention. This should include as many drawings and diagrams as possible since a picture is worth a thousand words. This description should explain clearly and concisely how the invention works, and what its advantages are over other technologies.
- Clear and concise claims: These are the most important parts of a patent application because they define the invention’s scope. Clear, concise, specific claims are essential. Avoid using vague or broad language.
- Use the appropriate terminology. Avoid using colloquial terminology. Use consistent terminology throughout your application.
- If they are helpful in clarifying the invention, drawings and diagrams should be included in your application.
- Hire a professional to assist you with the application. They are familiar with the legal requirements and have the experience to make sure that your application is compliant.
- Proofread and Review: Read the application carefully, and make sure to correct any errors or omissions.
Drafting a patent application involves conducting a thorough patent research, writing a description of the invention, drafting clear claims using appropriate terminology and drawings, hiring a professional to proofread and review the application. These steps will improve the likelihood of a successful patent application.
What happens after you file the patent application
There are several steps involved in patent prosecution to obtain a patent for an invention. These are the steps involved in patent prosecution:
- Filing a Patent Application: This is the first step in the patent prosecution. You must file a Patent Application with the appropriate government agency (e.g., the United States Patent and Trademark Office or the European Patent Office).
- Examining the patent application: After it is filed, the patent examiner will review it and determine if it meets all the legal requirements to be granted a patent.
- Respond to office actions. If the patent examiner discovers issues with the application they will issue an “office action”, which is a letter outlining those issues. Before the grant can be granted, the applicant will have to respond to office actions.
- Allowance and payment for the issue fee: The patent office will issue a notice to approve the application and then the applicant will need to pay an issue fee in order to get the patent granted.
- Patent office grants patent after payment of the issue fee. The patent office publishes the patent in the official gazette.
- Maintenance: To keep the patent in effect, the patentee must pay maintenance fees once granted.
- Enforcement and Defense: The patentee is able to enforce the patent and stop others from using, selling, or importing the invention. However, the patentee also has the responsibility of protecting it against invalidity and non-infringement challenges.
The patent prosecution process includes filing a patent request, reviewing and examination, responding in office actions, allowance, payment, issue fee, grant or renewal of patent, and maintenance fees.
Now reap the benefits of your hard work
Once you have filed your patent application, it is now a tangible asset with value. There are many ways to use a patent to increase the value of an existing company. Here are some examples:
- Licensing allows the company to license the patent to others companies. This gives them the right to use the patented technology for a fee, or royalty. This is a way for companies to generate revenue, without needing to invest in manufacturing and distribution.
- New products and services can be developed: Companies can use the patent technology to create new products or services that can be sold to customers, or licensed to other businesses. This could help increase the company’s product and service offerings, as well as its revenue.
- Competitive advantage: A patent can be used to protect existing products and services of the company from other competitors. This gives the company a competitive edge in the market.
- Cross-licensing is when the company can use the patent for cross-licensing with other companies. This allows the company to access other patents in return for licensing its patents.
- Increase company valuation: A patent portfolio can make a company more attractive to potential buyers and investors.
- Legal protection: Patents can be used to defend the company against patent infringement lawsuits. This allows the company to continue to function without worrying about costly legal disputes.
Important to remember that patents can only be used to increase the value of an existing company. This requires a strategic approach as well as a deep understanding of the patent landscape and market. Before implementing a strategy, a company must consider the benefits and costs of each option.