In 2019 there were 3,224,200 patent applications filed worldwide, 43.4% of which were filed in China. The United States accounted for 19.3% of applications, followed by Japan with 9.6%. The number of patents filed has generally increased over time but fell in 2019 for the first time since the 2008 financial crisis. [1]
Purpose of a Patent
The exclusive right granted to the holder of a patent amounts to a monopoly over that invention. A patent is used to prevent others from competing commercially with the holder. An inventor will want a patent if they intend to commercialize their invention. The patent rights allow the holder to occupy the entire field covered by their invention by preventing others from copying their invention. Throughout the life of a patent the holder has a unique opportunity to dominate a niche field without any competition.
From the perspective of the government the point of granting patents is to encourage innovation. In exchange for patent rights, the inventor must disclose the entirety of the invention and how it is made. Then, the invention passes into the public domain when the patent right expires, allowing anyone to make and use the invention. The granting of patent rights encourages inventors to disclose their invention to the public, which in turn bolsters the public domain.
Types of Patents
There are three types of patents an application can be filed for. Each type has different filing requirements for approval and affords differing protections to the claimed invention.
Design Patents
Design patents are granted to anyone who invents a new, original, and ornamental design for an article of manufacture. The protections afforded to a design patent only extend to the appearance of the design and not to any functional aspects of the design. A design patent has a maximum life of 15 years after the date of application. Examples include:
- The shape of the original Coca-Cola bottle
- The sleek design of the iPhone
- A new font
Utility 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. A utility patent is what one generally thinks of as an invention and must offer some functional benefit or solve a problem. Utility patents have a maximum life of 20 years after the date of application. Examples include:
- A drone
- A process for refining oil
- A genetically modified organism
Plant Patents
Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant. Prior to the Plant Patent Act people could not patent plants because they did not “invent” the new plant. To encourage horticulturist to develop new plant varieties, a plant patent can be awarded for any new variety once it is asexually reproduced. Plant patents have a maximum life of 20 years. Examples include:
- Discovering an apple tree that produces black apples and propagating a cutting
- Cross breeding tulip plants to develop a new variety
Applying for a Patent
To be considered for the granting of a patent a person must submit a patent application to the granting authority. In the United States, for an application to be considered it must include the following: a transmittal form; the appropriate fees; an application data sheet; a specification section with at least one claim; drawings; and a signed oath.
After filing the application, the patent office takes on average 14.8 months to examine it and issue a first office action. The office action details any problems with the application that are preventing issuance. The applicant then has an opportunity to correct any problems and resubmit. If properly corrected the patent office will issue a patent. If the patent office rejects the application for a second time, the applicant can appeal the decision. The average time for the patent office to approve a patent is 23.3 months. [2]
An inventor may file their own patent application and is not required to hire a patent attorney or patent agent. Filing your own patent application is not advisable though because there is no assurance that the patent obtained would adequately protect the invention. Patent attorneys must take and pass the patent bar, ensuring that they have proficiency with the patenting process and understand how to sufficiently protect an invention using a patent.
Patent Infringement
Infringement of a patent consists of the unauthorized making, using, offering for sale, selling, or importing any patented invention within the geographic territory of the granting authority during the life of the patent. In the United States if a patent is infringed, the patentee may sue for relief in federal court. The patentee may ask the court for an injunction to prevent the continuation of the infringement and may also ask the court for an award of money damages caused by the infringement.
FAQs About Patents
Any person who “invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent.” The patent act allows for the patenting of four different types of inventions, namely:
- Process
- Machine
- Manufacture
- Composition of matter
The invention must be new in the sense that no other person has done or made the claimed thing before. Finally, the thing claimed by the patent application must have some usefulness.
The cost obtaining an issued patent can be anywhere from $950 to over $15,000. The United States Patent Office calculates fees according to the following fee schedule. [3] These fees vary based on factors such as the type of application being filed, the number of claims, and the status of the entity applying (individual inventor, small business, corporation). Additionally, an applicant who hires a patent attorney must pay attorney’s fees.
Utility and plant patents have a maximum life of 20 years, and design patents have a maximum of 15 years. After a patent has been issued, the owner of that patent must pay maintenance fees every 4 years to prevent the patent from expiring. A patent can also expire if a court finds it to be invalid during an infringement suit.
» More about: How long patents last
Anyone can file a patent application, but getting an application approved can be a very difficult task. The number of patents issued floats around 50% of applications filed. [4] Most of these applications are submitted by a patent attorney, showing the difficulty of navigating the patenting process even by seasoned professionals.
Sheldon Brown
Sheldon received his training of the patent system at the United States Patent & Trademark Office. He works with universities and consultants to provide analytics and guidance for technology commercialization from patents.
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Sources:
- WIPO (2020). World Intellectual Property Indicators 2020. Geneva: World Intellectual Property Organization. (https://www.wipo.int/edocs/pubdocs/en/wipo_pub_941_2020.pdf)
- United States, Patent and Trademark Office. FY 2020 United States Patent and Trademark Office PERFORMANCE AND ACCOUNTABILITY REPORT. USPTO, 2020 (https://www.uspto.gov/sites/default/files/documents/USPTOFY20PAR.pdf)
- United States Patent and Trademark Office. USPTO fee schedule. https://www.uspto.gov/learning-and-resources/fees-and-payment/uspto-fee-schedule.
- United States Patent and Trademark Office. U.S. Patent Statistics Chart Calendar Years 1963-2020. https://www.uspto.gov/web/offices/ac/ido/oeip/taf/us_stat.htm