In inventing a new product, one of the first steps that an inventor should take is to patent his or her invention. There are a number of complications involved in the process, but they are not insurmountable if an inventor knows the process, follows each and every step along the way, and seeks help from a qualified patent attorney.
A federal patent grants exclusive use to an inventor. To qualify for patentability, the proprietor of a patent must demonstrate that their idea is a useful, novel, non-obvious invention. If it meets this criteria, an inventor can have the exclusive right to this invention for up to twenty years. The right conferred by a patent grant is “the right to exclude others from making, using, offering for sale, or selling” the invention in the United States or “importing” the invention into the United States. In the US, Patents are granted by the U.S. Patent and Trademark Office (USPTO.)
Patenting is a unique intellectual property consideration because it gives rise to a quid pro quo relationship. This exchange relationship is one of value between the inventor of a product and the consuming public that utilizes the invention.
There are three types of patents that your new product idea may fall under:
- Utility Patents. These protect any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvements. Industrial inventions will likely fall under this category.
- Design Patents. These protect merely ornamental or aesthetic designs. Revisions and alterations to simple inventions often fall under this category. For example, a design patent can cover a new specific shape of a pre-existing toothbrush.
- Plant Patents. These protect new varieties, types, and species of plants.
After sending in an application, the first step towards receiving a patent is passing an eligibility test by the USPTO. There are five elements that an inventor must prove to qualify for patent eligibility:
- The invention be a new and useful process, machine, or object.
- The invention must have utility.
- The invention must be novel or new.
- The invention must be non-obvious.
- The invention must not have been disclosed to the public before the patent application.
One key eligibility requirement is that an inventor needs to prove that his or her invention is the first of its kind in the world. This can be difficult given how many products, inventions, and patents there are out there, especially in the industrial equipment field.
As an inventor, you will have to spend considerable time conducting your own level of diligence and research to determine whether there is anything else on the market like your idea. Look through Google, Amazon, on the shelves at Walmart, etc. If nothing is similar to your product and your product brings new functionality that has not been yet seen in the marketplace, then you may be able to meet the eligibility requirement. Work with a qualified attorney to find your product’s angle or niche if it seems like there are already similar inventions to yours.
If you are able to demonstrate novelty, then you will also have to demonstrate that your invention is non-obvious. This means that it has to be out of the ordinary and not merely a knock-off or an obvious iteration of an existing and commonplace product.
Next, the invention has to have utility. This means that an inventor has to demonstrate that his or her invention will bring a benefit to somebody, either by making their lives better, making a process more efficient, making something safer, etc. It may be difficult to demonstrate that the invention will directly cause a benefit, so it is recommended that an inventor works with a qualified attorney to craft this narrative.
If your idea is truly worthwhile, then the patent process will be merely a roadblock on your way to success. A word of advice would be that after your application has been granted and you’ve received a provisional patent, be ready to hit the market right away- have a plan in place, and be organized enough to utilize the patent to your advantage.
Carly Klein is a law student at Loyola Law School in Los Angeles. If you are interested in learning more on the overall patenting process check out this 13-step guide that discusses the process of getting a patent for your idea.