Recently, patents, and the entire patent system, have been synonymous with reform. However, the truth remains that patents are a critical factor for sustainable success.
Whether you are at the helm of a startup that plans on crowdfunding a product or a SME working on a new and innovative technology, securing and protecting your intellectual property (IP) rights to that invention is key to successful commercialization.
Patents, copyrights and trademarks are all forms of intellectual property. For the purpose of this piece, patents — particularly design and utility patents — will be the focus of the conversation.
While all three types of IP are indeed essential for success, hardware-focused products rely heavily on patents. Before we delve into commercialization let’s quickly review what exactly a patent is.
A patent for an invention is the grant of a property right to the inventor, issued by the United States Patent and Trademark Office (USPTO). U.S. patent grants are effective only within the United States, U.S. territories, and U.S. possessions. There are three types of patents: utility, design and plant patents.
- Utility patents may be granted 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;
- Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture; and
- Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.
*The three patent descriptions above are from the USPTO website.
Researching Patent Options
There is nothing more time consuming and resource draining than filing a patent only to later realize that there is already a patent for a similar invention. To avoid this scenario completely, conducting a patent search is in order.
Patents hinge on the fact that they are one-of-a-kind; therefore, taking the time to research current patents and confirm that an invention does not already exist, should be the very first step.
The USPTO makes it possible to conduct a preliminary patent search on your own; however, it is highly recommended that you consult with a licensed patent search firm to assist with the bulk of the research. These firms have vast experience researching and are extremely knowledgeable in the classification systems.
Once the research portion has been conducted, the next common early-stage question that resonates in the mind of entrepreneurs is, Do I need to patent my design? Having a patent for your product design allows you to claim all rights to the product.
Often a design patent is overlooked and underutilized since this type of patent focuses more on the exterior design, features and overall aesthetics of the product and less on functionality.
Design patents extend to what is exactly shown in the drawings, nothing more. Having high-quality professional line drawings by a CAD designer is extremely advantageous.
With a design patent, you are able to use the coveted phrases, patent pending and patent issued on all marketing material, and have confidence that your invention is protected for the next fourteen years.
A design patent coupled with a utility patent provides overlapping protection for both the inner workings and exterior design of your product, and is a powerful tool in your IP arsenal.
In contrast to design patents, utility patents focus solely on the inner workings of your invention, its unique functions and overall usefulness. An invention is deemed useful if it provides an identifiable benefit and is capable of use.
People often refer to utility patents as “patents for invention”. According to the United States Patent and Trademark Office, ninety-percent of the patent documents issued by the USPTO in recent years have been utility patents. With a utility patent your invention will be protected for the next twenty years.
Design and utility patents each have a distinct form of protection and are often used congruently. It is best to consult with a licensed patent attorney to review the options and see what type of protection will be the most beneficial and cost-effective.
Filing for Provisional vs. Non-Provisional Utility Patents
So, you have done your research and are confident that your new product has not been previously patented, now is the time to decide if you need to file for a provisional or non-provisional utility patent.
In simple terms, a provisional application is a quick and inexpensive way to begin protecting an invention while you continue its development, conduct market testing and obtain funding. A provisional patent gives you exactly one year to file a non-provisional utility patent application and move forward in the patent process.
If you do not file within the one year time period, you have in essence “abandoned” the utility patent application and no longer have claim to the invention. Filing a non-provisional patent application establishes a firm filing date and starts the official examination process with the USPTO.
It is important to understand that although you file a patent application, there is no guarantee it will be issued. Examiners will review your application and look for prior patents that may conflict with what you are claiming. However, once you are granted a patent, you then have all rights to the invention and can enforce any infringement upon it.
Moving Towards Commercialization
While patents cannot provide a guarantee that your product will be successful, patents do allow you to secure all rights and claims to your invention. Patents can bolster competitive advantage and assist in the streamlining of the entire commercialization process.
Without patent protection, some inventions cannot be commercialized at all because both the inventor and investors understand that the product can easily be duplicated, leaving them with no recourse if their product is copied. Taking the time to develop a high quality patent means much more in the marketplace and can ultimately determine the success or failure of a product.
Filed Under: Industry regulations