How to Patent

Obtaining a patent is fundamentally different from obtaining a copyright or a trademark, in that patent rights do not derive in any way, shape or form from what is called the “common law.” Rather, patents are creatures, first and foremost, of the United States Constitution, as well as of statutes passed by the United States Congress, and regulations passed by the United States Patent and Trademark Office (USPTO). Thus, unlike copyrights and trademarks, patents can only be obtained through the filing of a patent application and obtaining a patent registration. Furthermore, patents are more costly to obtain than copyrights or trademark rights. All of that said, the possession of a patent grants the right of the holder of the patent to exclude others from engaging in a number of activities, and as such these rights can be quite valuable when effectively leveraged.

The first step in obtaining a patent is to decide what kind of patent you will be applying for. Depending upon the subject matter of the patent, you will either be applying for a design patent, a utility patent, or a plant patent. According to the USPTO, a design patent is granted to those who invent a new, original and ornamental design for an article of manufacture, whereas a utility patent is granted to those that invent or discover a new and useful process, machine, article of manufacture, or composition of matter, or any new useful improvements thereof. Plant patents are granted to those who invent or discover and asexually reproduce any distinct and new variety of plant. While it may take a patent attorney to full flesh out the details of these descriptions, you should know enough about your invention to decide which of these you will be applying for.

The next step in obtaining a patent will be to begin work on what is known as the specification. The specification of a patent might also be called the “technical” as opposed to the legal aspect of the patent. A patent specification, which is also sometimes referred to as a disclosure, is basically a written description of the invention. The specification will include the title of the invention, cross-references to other related applications, statements regarding any federally sponsored research, the background of the invention, the summary of the invention, descriptions of any drawings that are included, a detailed description of the invention, and an abstract. The detailed description is particularly important, and ought to include a general and specific component; the general component will convey the broadest possible technical scope of the patented material, while the specific component will refer to specific ways to “practice” the patent so as to assist in showing “enablement.” Enablement is the requirement that the patent be drafted such that it would permit someone skilled in the art in question to make and use the invention in question.

Bear in mind that there are certain pre-filing considerations that can preclude patent rights; for example, public disclosure starts a one-year clock for filing, at the end of which patent rights cannot be granted. These and other issues necessitate consultation with a patent attorney.