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Patent Law: How do I Secure a Patent?

An inventor in the United States may pursue a patent for an invention by filing a patent application with the U.S. Patent and Trademark Office (USPTO). This application includes a precise and detailed description of the invention, a description of the conception and development of the invention, detailed drawings, and one or more claims as to what useful function it performs. The application is then reviewed by a patent examiner in the USPTO who has experience with the subject matter of the invention.

It may take two years or more for the patent office to rule on the application. While the application is pending, the applicant may seek to amend the application or to disclaim a part of it if that part could prevent the patent from being granted.

As you can see, patents are quite complicated. This article provides a concise explanation of the process.

Different Types of Patent Applications

Patent protection is secured through the filing of an application with the Patent and Trademark Office. There are five basic types of patent applications:

  1. An original application, as the name implies, is not based on or tied to any other patent applications before the patent office.
  2. A continuation application, by contrast, is based on an existing application, and has many identical components. It is typically used to modify the prior application when processing has been held up. 
  3. Continuation-in-part applications include additional subject matter and are generally used to protect improvements to the original invention. 
  4. Divisional applications arise when the patent office determines that the patent application covers more than one invention.
  5. Provisional applications are preliminary in nature and are used to secure an earlier filing date for an invention.

The Different Parts of a Patent Application

A patent application must contain a specification, a drawing of the invention, an oath by the applicant stating that the inventor believes her or she is the first inventor of the item, and a filing fee. These parts typically include the application's title, cross-references to related applications, the field or subject area of the invention, background on the "art" of the invention, a summary of the invention, description of accompanying drawings, description of preferred embodiments, claims, and an abstract.

The parts of the specification serve various purposes:

Title: The title of the invention is the patent examiner's or reviewing court's first clue as to what the invention is or does. Thus, it should be carefully crafted to match the intentions of the inventor.

Cross-References: Cross-references put the patent office on notice that this application is closely related to another pending before it, as in the case of continuation, continuation-in-part, and divisional applications.

Field: The field of the invention concerns the technical field in which the invention is to be used. The patent examiner will use this information in determining whether the invention meets the requirements of novelty (the invention has not been made before) and nonobviousness (the invention is not an obvious development).

Background on the Art: Related to the field is the background of the art, or background art, section, in which the applicant explains to the patent examiner the problem the invention solves or the process the invention improves.

Summary: In the summary, the applicant describes the features and advantages of the invention, which should relate to the problems or inadequacies addressed in the background art section. The summary must also show that the invention has been "reduced to practice," that is, utilized for its intended purpose. In order to be patentable, the invention must work; its abilities and functions cannot be speculative.

Drawings: Additionally, the vast majority of patent applications will include drawing(s) of the invention. The application should include a brief description of the drawing(s), including the perspective of the viewer observing the drawing.

Description of the Preferred Embodiments: Because the public will have use of the invention after the patent has expired, the application must make clear how the invention is to be made and used. This information comes in the description of the preferred embodiments. Here the applicant describes the materials and parts used to make the invention and the precise manner of using it.

Claims: The last major section of the specification is the claims, which helps the courts and the patent office determine whether the invention is patentable and what it protects. In the claims section, the applicant sets forth in explicit detail the structure of the invention and what it does. The claims section must be carefully drafted so that it describes no more and no less than what the invention is and does. If it's too broad, it may be rejected by the patent office; if it's too narrow, it will fail to protect the full rights of the inventor.

Abstract: The final piece of the specification section is an abstract, which is a single paragraph summarizing the invention. The abstract emphasizes the invention's novel features, and appears on the first page of the patent once it is issued.  Application fees vary based on the type of application and the size of the entity pursuing the patent.

Get Professional Legal Assistance from a Patents Attorney

Because the right to pursue a patent expires if an inventor does not file within one year of publicly showing, using, or selling the invention, inventors who have done any of these things should seek legal assistance promptly. Contact a patent law attorney in your area for a consultation.

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