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That’s a Great Idea

How a patent lawyer can protect your invention.

By Mike Young

A good patent lawyer will be able to help you determine whether your invention can be protected by registration with the U.S. Patent and Trademark Office, or USPTO. As part of the process, you’ll learn the type of patent you’ll want to get for your intellectual property.

What Is a U.S. Patent?
If the USPTO ultimately determines your invention a “new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof,” then the federal government will grant you the right to exclude others from making, using, or selling your intellectual property for approximately 20 years depending upon the type of patent.

What About a U.S. Provisional Patent?
Like a unicorn, a U.S. provisional patent really doesn’t exist. However, there are some circumstances justifying the need to file a provisional patent application, or PPA, for your invention with the USPTO first. The U.S. has now adopted a first-to-file patent system in order to establish priority.

Note that if one files a PPA, it must be “converted” to a regular, non-provisional application within 12 months of filing or else the PPA is automatically deemed abandoned. You’ll lose the benefits of filing the provisional application and be statutorily barred from filing the non-provisional application thereafter.

Types of U.S. Patents
Although a provisional patent does not exist, there are three types of patents the USPTO can issue: utility, design, and plant. According to the USPTO, a utility patent, the most common, is for a useful process, machine, article of manufacture, or composition of matter; a design patent is for ornamental characteristics; and a plant patent is for a new variety of asexually produced plant. In rare circumstances, a proposed invention may qualify for more than one type of patent, and/or qualify for copyright protection and/or trademark protection.

Your registered patent attorney can identify which you should seek and prepare the application for the USPTO to examine. A properly drafted application can maximize your property and legal rights.

What Is a Registered Patent Attorney?
Not all lawyers can practice patent law before the USPTO. An attorney must pass a difficult patent bar exam in order to become a registered patent attorney, or RPA. According to the USPTO, there are approximately 34,000 active attorneys with licenses to practice before the USPTO.

How Long Will It Take to Get a U.S. Patent?
The average length of time for a patent to be approved is almost 30 months from filing, but the actual time can vary greatly depending on many factors, such as the complexity of the proposed invention.

What if Your Invention Doesn’t Qualify for a Patent?
You may learn from your patent lawyer or the USPTO that your intellectual property can’t be protected by a patent. If that happens, your attorney can advise you on other possible ways to protect your IP, including steps to shield it, for example, as a trade secret. In other words, you still may be able to profit from your invention without having a patent for it.

What About Patent Infringement?
If you already have an enforceable patent but someone is using a part of your invention without your permission, you should seek legal help from an RPA immediately. Your patent lawyer may be able to enforce your exclusive rights via a court order to stop the infringement and force the infringer to pay royalties or award you damages.

Likewise, if you’ve been accused of infringing someone else’s intellectual property, you should immediately seek legal advice, preferably from an RPA, as one may be subject to additional damages from “willful infringement.”

What About Trademarks?
Trademarks can be one of most important assets of a company. Coming up with and then protecting your distinguishing word, logo, shape, sign, expression, etc., may be a necessary and invaluable business decision.

Can a Patent Lawyer Also Help You With Copyrights?
Copyrights can be invaluable intellectual property for the creator of an original artistic or literary work such as a movie, song, book, computer program, or photo. Copyrights include the exclusive right to make, publish, and sell your copyrighted property. There are distinct advantages to registering your copyright.

A good RPA should be able to assist you with all of your intellectual property needs.^TBJ

This article originally appeared on the author’s blog and has been edited and is reprinted with permission.

MIKE YOUNG
is a Plano-based solo practitioner focused on internet law.

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