An issued patent gives the patent holder the “right to exclude others from making, using or selling the invention throughout the United States” and its territories and possessions. Without a patent, there is typically no protection for an idea or invention.
It is the safest and best practice to always file a patent application prior to any publication, offer for sale, and/or public use of the invention. This is because in the United States, if you publish or offer for sale your invention to a third party, you will most likely have lost your rights to file a patent application. Also, many foreign countries require absolute novelty, i.e., you must have a patent application filed prior to any disclosure to a third party. These deadlines are not extendable and should not be taken lightly. Failure to file a patent application within this timeframe may invalidate any issued patent, and disclosure prior to patenting may prevent you from obtaining U.S. and foreign patents.
The following types of patent applications can be filed with the Patent and Trademark Office (PTO):
- Provisional Application for a Patent
A provisional application allows an inventor to file for a patent without a formal patent claim, oath or declaration, or any information disclosure (prior art) statement. It establishes an effective filing date, allowing an inventor up to one year to assess the invention’s commercial potential before committing to the filing and prosecuting of a non-provisional application for patent.
Why file a provisional application?
- It provides simplified filing with a lower initial investment.
- If a patent is subsequently issued on the invention, protection is granted as of the date of the filing of the provisional application.
- It allows the term “Patent Pending” to be applied to the invention.
Why not file a provisional application?
- You may not obtain the filing date for any added new matter.
- A provisional patent does not issue, a non-provisional patent must be filed within one year.
- Total cost and time are increased.
- Gives any future patent infringement suit ammunition to find new matter between the provisional and non-provisional patent and to question whether the provisional patent application disclosure fully supports the non-provisional patent.
Note: A provisional application can be filed for utility and plant patents. Design patents cannot be the subject of a provisional application.
- Design Patent
A design patent protects the ornamental features of a product. The term of a design patent is 14 years from the date of application.
- Plant Patent
A plant patent is granted to an inventor who has invented or discovered and asexually reproduced a distinct and new variety of plant, other than a tuber propagated plant or a plant found in an uncultivated state. The patent lasts for 20 years, and protects the inventor’s right to exclude others from asexually reproducing, selling, or using the plant so reproduced.
- Utility Patent
The most common type of patent is a utility patent. A utility patent generally protects the functional features of an invention. The term of a utility patent is 20 years from the date of application.
- International or PCT Application