What is intellectual property?
The term intellectual property refers to creations of the mind – creative works or ideas embodied in a form that can be shared or can enable others to recreate, emulate, or manufacture them. There are four ways to protect intellectual property – patents, trademarks, copyrights or trade secrets.
What is a patent?
A patent for an invention is a grant of property rights by the U.S. Government through the U.S. Patent and Trademark Office. The patent grant excludes others from making, using, or selling the invention in the United States. A utility or plant patent term is 20 years from the earliest effective U.S. filing date, subject to the payment of appropriate maintenance fees for a utility patent. A design patent term is 14 years from patent grant. Maintenance fees are not required for design or plant patents. The right conferred by the patent grant extends throughout the United States. The terms “Patent Pending” and “Patent Applied For” are used to inform the public that an application for a patent has been filed. Patent protection does not start until the actual grant of a patent. Marking of an article as patented, when it is not, is illegal and subject to penalty.
How much does it cost to get a patent?
In addition to professional fees for patent services, USPTO fees vary depending on the type of patent application you submit. Fees may also vary according to the way you “claim” your invention.
There are three basic fees for utility patents:
- The filing fee, which is non-refundable whether or not a patent is granted. (This is the cost to have your invention “examined” by the US Patent and Trademark Office);
- The issue fee (you pay this only if your application is allowed); and
- Maintenance fees (paid at 3.5, 7.5, and 11.5 years after your patent is granted – these fees “maintain” your legal protection).
Additional USPTO fees may be required during the course of patent prosecution.
What is patent eligible subject matter?
What can be patented – utility patents are provided for a new, nonobvious and useful:
- Article of manufacture
- Composition of matter
- Improvement of any of the above
Note: In addition to utility patents, encompassing one of the categories above, patent protection is available for (1) ornamental design of an article of manufacture or (2) asexually reproduced plant varieties by design and plant patents.
What cannot be patented:
- Laws of nature
- Physical phenomena
- Abstract ideas
- Literary, dramatic, musical, and artistic works (these can be Copyright protected). Go to the Copyright Office .
- Inventions which are:
- Not useful (such as perpetual motion machines); or
Offensive to public morality
Is there such a thing as an international patent?
No, but you can seek patent protection in a number of countries by filing a single “international application” under the Patent Cooperation Treaty (“PCT”).
What is the Patent Cooperation Treaty (“PCT”)?
The PCT is an international treaty with more than 145 Contracting States. The PCT makes it possible to seek patent protection for an invention simultaneously in a large number of countries by filing a single “international” patent application instead of filing several separate national or regional patent applications. The granting of patents remains under the control of the national or regional patent Offices in what is called the “national phase”.
How do I protect my invention in several countries?
Patents are territorially limited. In order to protect your invention in multiple countries you have a few options:
(a) Direct or Paris route: You can directly file separate patent applications at the same time in all of the countries in which you would like to protect your invention (for some countries, regional patents may be available) or, having filed in a Paris Convention country (one of the Member States of the Paris Convention for the Protection of Industrial Property), then file separate patent applications in other Paris Convention countries within 12 months from the filing date of that first patent application, giving you the benefit in all those countries of claiming the filing date of the first application; or
(b) PCT route: You can file an application under the PCT, directly or within the 12-month period provided for by the Paris Convention from the filing date of a first application, which is valid in all Contracting States of the PCT and, therefore, simpler, easier and more cost-effective than both, direct or Paris route filings.
How long does the PCT process take?
You have, in most cases, up to an additional 18 months from the time you file your international patent application (or usually 30 months from the filing date of the initial patent application of which you claim priority) before you have to begin the national phase procedures with individual patent Offices and to fulfill the national requirements.
This additional time can be useful for evaluating the chances of obtaining patents and exploiting your invention commercially in the countries in which you plan to pursue patent protection, and for assessing both the technical value of your invention and the continued need for protection in those countries.
It is important to note, however, that you do not have to wait for the expiration of 30 months from the earliest filing date of your patent application (“priority date”) before you enter the national phase – you can always request an early entry into the national phase.
Since, in the national phase, each patent Office is responsible for examining your application in accordance with national or regional patent laws, regulations and practices, the time required for the examination and grant of a patent varies across patent Offices.
How do I enter the national phase?
It is only after you have decided whether, and in respect of which States, you wish to proceed further with your international application that you must fulfill the requirements for entry into the national phase. These requirements include paying national fees and, in some cases, filing translations of the application. These steps must be taken, in relation to the majority of PCT Contracting States’ patent Offices, before the end of the 30th month from the priority date. Once you have entered the national phase, the national or regional patent Offices concerned begin the process of determining whether they will grant you a patent. Any examination which these Offices may undertake should be made easier by the PCT international search report and the written opinion and even more by an international preliminary examination report.
What are the advantages of the Patent Cooperation Treaty?
- brings the world within reach;
- streamlines the process of fulfilling diverse formality requirements;
- postpones the major costs associated with seeking multinational patent protection;
- provides a strong basis for patenting decisions; and
- is used by the world’s major corporations, research institutions and universities when they seek multinational patent protection.