Patent Application Process
A patent can provide protection of an invention to the patent holder for a period of about 20 years. A patent is a grant by the U.S. Patent and Trademark Office (USPTO) that allows the patent owner to exclude others for a limited period of time from making, using, or selling an invention or from importing it into the U.S. Likewise, a patent owner has the right to decide who may use the invention during the time period in which it is protected, or he may sell the right to the invention to someone else. Therefore, it can be quite lucrative to seek patent protection for inventions that are not necessarily intended to be manufactured or used by the inventor or company owner itself.
The first step in securing a patent is filing a patent application. The application contents are critical in defining the scope of protection should a patent be awarded on the invention, and it generally contains: the title of the invention; an indication of its technical field; background; description of the invention in clear language and enough detail that an individual with an average understanding of the field could use or reproduce the invention; drawings (if necessary to understand the parts of the invention, how the parts work together, or how the invention works overall); and the claims, which is the key information that determines the extent of protection of the invention granted by the patent office.
In general, an invention is patentable if it is (1) Novel: contains at least some new characteristic that is not known in the body of existing knowledge in its technical field; (2) Nonobvious: shows an inventive step that could not obviously be deduced by a person with average knowledge of the technical field; and (3) Patentable: meets the basic criteria for patentability.
Provisional Patent Application
A provisional patent application (PPA) is usually filed to preserve the priority date for patent protection of an invention. PPAs are not examined for content and no patent is granted on the basis of a provisional application. Rather, the PPA starts the clock on a 12-month period in which an inventor can file a regular, nonprovisional application and claim the benefit of the filing date of the provisional application.
The benefits of filing a PPA versus a nonprovisional application at the outset depend on the stage of the invention and intentions of the inventor, but they generally include: (1) Inventor can take up to a year to assess whether the invention will sell before committing to the higher cost of filing and prosecuting a regular patent application; (2) a “Patent Pending” notice can then be used to deter others from infringing on the invention; and (3) a later nonprovisional application for the same invention can claim the benefit of the filing date of the PPA, yet the PPA is preserved in confidence while the inventor considers whether to pursue a nonprovisional application.
The only requirement for a PPA is that it must adequately describe how to make and use the invention. That is, a provisional patent application must include a description of how the invention works, but it is not necessary to include many of the other application parts, including claims, that are required for a nonprovisional application. A provisional patent application consists of text (the ‘specification’) and drawings that describe how to make and use your invention. This is generally a brief document written in plain English, with none of the arcane language used in regular patent applications. Likewise, drawings submitted in the PPA can be informal as long as they—in conjunction with the written statement—show how to make and use the invention.
Nonprovisional Patent Application
Unlike a provisional patent application, a nonprovisional application is the application that can result in a patent. To apply for a U.S. patent, the inventor–or the inventor’s attorney–files a nonprovisional patent application with the USPTO. To obtain a patent, the application must follow technical conventions and contain words and drawings to clearly: (1) demonstrate how to make and use the invention, (2) explain why the invention is different from all previous and similar developments (known as the prior art), and (3) precisely describe what aspects of the invention deserve the patent (the patent claims). This patent application will be examined by the USPTO, and will likely result in discussion between the applicant (or the applicant’s attorney) and the USPTO patent examiner.
If the application is eventually allowed, the applicant makes a payment for issuance and the patent is granted.