Thursday, November 3, 2011

Patent Basics - Part 5 in our Patent and IP Series

This is the fifth in a planned 20-part series of articles on intellectual property protection. In future articles, we will also explore licensing and commercialization of products in later posts.

In this article, we will provide a brief summary of the basics of a patent – what it protects, what kinds of patents are available and how it is comprised.

The US Patent and Trademark Office (USPTO) determines and issues patents in the United States. 

There is a ton of information on patents at their website:, as well as many other sites, which are run by patent attorneys and other experts.   For detailed information, we encourage you to read those sites as well.

Contrary to what you might think, a patent (in this case, we are discussing a utility patent) does not grant someone the right to make or use or work on an invention, but rather, it prohibits others from infringing on the patent.  The law then defines infringement as when someone, without the proper authority, “makes, uses, offers to sell, or sells any patented invention, within the United States, or imports into the United States any patented invention during the term of the patent.“[i]   The “term” of the patent begins at the filing date, which is the date the USPTO receives a proper application.

There are three kinds of patents:

  • Utility patent – this is the most common type of patent and can be issued “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”[ii].  A utility patent term is 20 years from the filing date.
  • Design patent – protects the appearance of something.  A design patent generally consists of multiple drawings and is used to prevent someone else from making something that looks the same.  In other words, from a very basic perspective, the design patent protects how something looks, while a utility patent protects what it does.  A design patent term is 14 years from the filing date[iii].  
  • Plant – this is a patent that protects plants – the kind that you find in a garden.  It can be issued to someone to protect a new kind of plant they have developed. 
Utility patents have several elements, principally[iv]:
  • Utility Patent Application Transmittal Form or Transmittal Letter
  • Fee Transmittal Form and Appropriate Fees
  • Application Data Sheet (see 37 CFR § 1.76)
  • Specification (with at least one claim)
  • Drawings (when necessary)
  • Executed Oath or Declaration
  • Nucleotide and/or Amino Acid Sequence Listing (when necessary
All these have to be presented to the patent office with proper information in a certain way, which is why you really should hire a professional, qualified patent attorney or agent to prepare and file your patent.  Otherwise, you can cause delays in your application and possibly even lose your opportunity to file.

In our next installment, we will discuss the patent process, the time required and costs.

[i]  US Patent Act, 35 U.S.C. 271(a), which can be found at:

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