Patent FAQ’s

Here are some of the most commonly asked questions regarding patents and the process:

Q1. What is a patent?

A. A patent is a right granted by the United States, and other countries, to exclude others from making, using or selling your invention for a limited time in exchange for the public disclosure of your invention.

Q2. Why should I file for a patent and not just place my product on the market?

A. As discussed above, a patent gives the inventor the right to exclude others from a particular market space. If the invention can be readily produced and sold by competitors then it may be advisable from a business perspective to seek to protect your intellectual property. Also, if you seek to sell or license your idea to a third party you will have more leverage in your negotiations with that third party if you have secured a patent on the invention.

Q3. Once I file my patent application how long until I hear back from the patent office?

A. U.S. Patent Office statistics reveal that the average time until the first office action is 28 months.

Q4. How long, on average, does it take for the patent application examination process to run its course?

A. U.S. Patent Office statistics reveal that the average time until allowance of a patent is 33.7 months.

Q5. How much does it cost to file a utility patent application prepared by a patent attorney?

A. Depending on the billing rate and the time required it is common for a patent application to cost $3,500-$5,000 at the low end and $12,000-$18,000 or more for a complex application. These amounts generally only include legal fees and not the cost of drawings or government filing fees. Once the application is filed additional fees will be incurred when the Patent Office Examiner responds with an office action following his or her examination of the application. About 85% of all applications receive a rejection upon first review by a Patent Office Examiner. It is then the job of the patent attorney to respond to the Examiner with both technical and legal arguments and possibly amendments to the claims in the originally filed application. The cost of responding to the Examiner following an office action can range from a few hundred dollars to several thousand dollars depending upon the complexity of the rejection raised by the Examiner and the number of references (patents and applications cited by the Examiner) that must be reviewed by the patent attorney.

Q6. What is the difference between a design patent and a utility patent?

A “utility patent” protects the way an article is used and works, while a “design patent” protects the way an article looks. The ornamental appearance for an article includes its shape/configuration or surface ornamentation applied to the article, or both. Both design and utility patents may be obtained on an article if invention resides both in its utility and ornamental appearance.

Q7. What is the purpose of a provisional patent application?

A provisional application for patent is a U.S. national application for patent filed that allows filing without a formal patent claim, oath or declaration, or any information disclosure statement. It provides the means to establish an early effective filing date in a later filed non-provisional patent application. It allows the term “Patent Pending” to be applied in connection with the description of the invention. A provisional application for patent has a pendency lasting 12 months from the date the provisional application is filed. The 12-month pendency period cannot be extended. Therefore, an applicant who files a provisional application must file a corresponding non-provisional application for patent during the 12-month pendency period of the provisional application in order to benefit from the earlier filing of the provisional application.

Q8. For how many years are utility and design patents enforceable?

A utility patent is enforceable for 20 years from the date of the application. A design patent is enforceable for 14 years from the date of issue.

Q9. Before commissioning a patent attorney to prepare a patent application what, if anything, should be done?

Many patent attorneys recommend the performance of a patentability search (also called a prior art search) prior to the drafting of a patent

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application. A patentability search is a cost effective way to further evaluate whether or not the invention will be patentable. If prior art is located that is close to your concept then it may not be worth the effort and expense to fully develop and market your concept.

Q10. Is a patent issued by the U.S. Patent office enforceable in foreign countries?

No. A U.S. patent is only enforceable in the United States. If you want foreign patent protection you will have to file in the foreign countries of your choice. Under treaties with most foreign countries, if you have filed a patent application in the U.S., it’s possible to delay filing your application for a foreign patent for up to one year after the U.S. filing and still claim “priority” in the foreign country. Under the Patent Cooperation Treaty, many countries have actually combined and streamlined their processes. In Europe, for instance, you file a single application and submit it to the European Patent Office which then processes and sends out individual applications to all requested countries with each country’s

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individual requirements.

Q11. Who is responsible for enforcing an issued patent?

The owner of the patent is responsible for enforcing their patent rights. The U.S. government does not enforce patents unless they are also the owner, e.g., the patent is assigned to the U.S. Navy, National Institutes of Health, Department of Energy, etc.

Q12. If there is more than one inventor can all inventors be listed on the patent, should it ultimately be allowed by the U.S. patent office?

Yes. All inventors must be listed on the patent application. Failure to list all inventors can result in the patent being invalidated.

Q13. Can I sell my patent or license another party to make, use or sell my patented invention?

Yes. A patent owner can outright sell (assign) the patent to another party or license one or more parties to produce the product covered by the patent claims.

Q14. Have there been any new developments in patent statutes in the recent past?

Yes. On September 16, 2011, President Obama signed the Leahy-Smith America Invents Act and which will marshal in major changes to the U.S. patent system. Many provisions of the Act take effect a year or more after this date including, e.g., procedures for post-grant review proceedings before the U.S. Patent and Trademark Office and a change to a first inventor to file system (after March 16, 2013). However, a number of changes took effect on September 16, 2011, or soon thereafter.

Q15. What are the odds on any particular patent being allowed by the U.S. Patent Office?

A In 2010 the U.S. Patent Office had an allowance rate of about 45%.

– Contributed by Bob Lambrechts, licensed patent attorney with Lathrop & Gage LLP

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