Patent protections exist in order to help inventors, designers and creators legally safeguard their work from those who would seek to use or profit off of it without express permission. The first thing that a patent applicant must do before formally filing for this type of protection is to determine what kind of application to file.
There are three types of patents available to individuals and
businesses. First, those interested in protecting new and unique asexually
reproducing plant species and hybrids may file for plant patents. Second, those
wishing to safeguard designs of existing manufactured products and processes
may consider filing for design patents. And finally, nine out of every ten
patent applicants will opt to file for utility patent protections in
order to ensure the proprietary nature of their manufactured products,
processes and ideas.
Once the correct patent type has been identified, it is time to
decide whether to file provisionally or non-provisionally.
Provisional Vs. Non-Provisional Patents
If you are planning to file for a design patent, you only have one
type of application available to you. But if you are planning to file for a
utility patent, you have two application options available. When the United
States Patent and Trademark Office processes patent applications, it grants each request a
filing date. This filing date is critical because it is the date that the USPTO
will essentially start granting an affected product, process, design or idea
protection in the event that a formal patent is eventually granted. This date
therefore allows the patent holder a reference point upon which protections may
be enforced in court.
The filing date is also critical because when prior art
threatens to infringe upon the novelty of the product, idea, design or process
in question, the USPTO evaluates the creation of that prior art against the
filing date. Practically speaking, this means that the more quickly a patent
applicant secures a filing date, the more secure that applicant may rest in the
novelty of a creation and the potential for enforcement against any eventual
attempts at infringement.
When an individual or business files a non-provisional
application, the filing date is secured automatically because this application
type formally requests patent protection. This is the only option available to
applicants for design patents. Utility applicants may also file a provisional form
up to 365 days before filing a nonprovisional request. A provisional
application will allow an individual or business to secure a favorable
nonprovisional filing date while granting the applicant extra time to formalize
their formal, nonprovisional request.
The Patent Application Process
The nonprovisional patent application process is especially
intricate and time-consuming. It is important to understand that any incorrect
or incomplete elements of an application may lead to its rejection. Given how critical
it is for an applicant to secure protections in accordance with an
application’s initial filing date, it is best to avoid preventable rejection
whenever possible. As a result, it is generally a good idea for both
individuals and businesses seeking patent protection to work with legal counsel
experienced in intellectual property matters as they prepare to file their
applications.
When compiling necessary information for an application, write
down every detail that could possibly impact the filing. Dates of improvements
to the product, prototype drawings, research notes, etc., may all help to
ensure that the USPTO ultimately determines that a product, process, idea or
design is novel, non-obvious and (when required) useful. Aiding your attorney
by providing all potentially relevant information will be very helpful to the
process of compiling and filing your application.
It is worth noting that if for some reason your application is
rejected twice, you may be able to appeal the USPTO’s original determination.
Your attorney will be able to assist you with the appeals process. Similarly,
if you feel the need to amend your application before it has been formally
reviewed, your attorney will be able to assist you with the amendment process.
If filing a patent doesn't work out, other avenues to explore
may be copyright, trademark and trade secret rights. I believe that creative work is uniquely
valuable and should be protected under the law.
The information provided here is not legal advice and does not purport to be a substitute for advice of counsel on any specific matter. For legal advice, you should consult with an attorney concerning your specific situation.
Source: Forbes.com
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