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Frequently Asked Questions About Patents

Q: What is a "provisional application for patent?"

A: A provisional application for patent is an application for a patent filed in the United States Patent and Trademark Office (USPTO), which is not examined, but allows the applicant to establish an early effective filing date in a later filed patent application. It does not require a formal patent claim, oath or declaration, or a prior art statement. The provisional application lasts for 12 months and can't be extended, so the applicant will have to file a non-provisional patent application before the 12 months runs out. Another option is file a petition to convert the provisional application into a non-provisional application, although this will affect the term of the patent. After filing a provisional application, applicants may use the term "Patent Pending" when describing the invention.

Q: What does "Patent Pending" mean?

A: This term is used by the manufacturer or seller of an invention to inform consumers and others that a patent application has been filed with the USPTO. Although you don't have a patent yet, being able to say “patent pending” conveys to others that you have taken steps to protect your idea, and warns them that if they try to copy your idea, they may face legal consequences.

Q: How can I figure out if what I invented has already been patented?

A: Inventors can perform a preliminary patent search online, at the USPTO Patent Search Facility in Alexandria, Virginia, or at one of the Patent and Trademark Depository Libraries located throughout the country. Patent assignment records can also be searched online. You can retain a patent attorney to conduct a complete search.

Q: How much does it cost to file a patent application?

A: The cost depends on what type of application you file. The USPTO maintains a current fee schedule that lists the fees associated with various types of patent applications. There are also various fees involved in the patent process, including the filing fee, the issuance fee, and the maintenance fee.

Q: Where can I find patent forms for applications?

A: There are two sets of forms, one for applications filed before September 16, 2012 and one for applications filed on or after September 16, 2012. This is due to the enactment of the America Invents Act of 2011, whose most significant provision changes the U.S. patent system from a "first to invent" system to a "first to file" system.

Q: What is the process for obtaining a patent?

A: The process for getting a patent can be quite complicated, and is often best handled by a qualified patent attorney. For example, to obtain a utility patent, the USPTO advises that the following steps are involved:

  • Search to see if the invention has been patented.
  • Applicant determines what type of patent application to file (design, utility, or plant).
  • Applicant determines filing strategy (international or U.S. only).
  • Applicant determines whether to file a provision or non-provisional patent application.
  • Applicant considers whether an expedited examination is appropriate.
  • Applicant decides whether to file on their own or have a patent attorney or agent file.
  • Applicant prepares for electronic filing.
  • Applicant applies for patent using electronic filing system.
  • USPTO examines application.
  • If not allowed, applicant files replies, requests for reconsideration and appeals, as appropriate.
  • If allowed, applicant pays the issue and publication fees.
  • After the patent is granted, maintenance fees are required 3.5, 7.5 and 11.5 years after the patent is granted.

Q: Can the public get information about my patent application while it is pending?

A: The USPTO advises that it keeps patent applications in strict confidence until the patent is issued or the application is published. Once the application is published, the public may request a copy of the application file. Most applications are published 18 months after the date the application was filed.

Q: How do I check the status of my patent application?

A: The USPTO maintains a Patent Application Information Retrieval system, which allows users to retrieve information regarding the status of a patent application. The public system allows access to issued patents and published applications, and the private system allows access to pending application status using digital certificates. Certain requirements must be met to access the private system.

Q: Who is the patent granted to, if two people work on the invention together?

A: If two people share ideas to form the invention, they are joint inventors. The patent will issue to them jointly, provided the patent application is otherwise proper. If one person provided all of the ideas of the invention, and the other only followed instruction in making it, the person who provided all of the ideas is the sole inventor.

Q: Where can I find more information on patents?

A: Find more information on patents, admissible subjects and other conditions on obtaining a patent, and how patents differ from copyrights and trademarks by reading these FindLaw resources.

Q: How can I find a patent attorney to help me?

A: Find a patent attorney in your area.

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