Ways of Securing a Patent

By Phil M. Fowler

A patent is a legal right, provided under federal law, to operate a monopoly on a certain product, idea, process, or other invention for a certain amount of time, typically 14 to 20 years. The U.S. Patent and Trademark Office, a branch of the federal government, only issues a limited number of patents, with only one patent per novel idea. Accordingly, it can be highly lucrative to secure a patent or the use of a patent. The only ways to secure a patent, or the use of a patent, are to either obtain the patent yourself from the USPTO or obtain permission from the current patent holder.

Provisional Applicaiton

A common way to secure a patent is to file a provisional patent application with the USPTO. A provisional patent application is essentially a preliminary, summary version of a final patent application. USPTO will not issue a patent based on the provisional application, but filing for the provisional application does give you certain rights related to the patent that may issue at a future date. For instance, if you file a provisional patent application, while the application is pending you can claim "patent pending" on your idea or product, and if anyone violates the patent during the patent pending period you will have the right to sue them at the time you acquire the final patent. A provisional patent application, then, is a temporary and conditional way to immediately secure the benefits of a future patent.

Final Application

To obtain a final, official patent from USPTO, you can either convert a provisional patent application into a final patent application, or file a final patent application even if you never filed a preliminary application. If your patent application reveals a genuinely novel and useful invention or idea, the patent and trademark office will issue you a patent. The final patent application process typically takes 18 months or more.

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License Agreement

If the idea or product you want to use is the subject of an existing patent, you can secure the use of the patent by negotiating a license agreement with the patent holder. Under the license agreement, the patent holder will give you either the exclusive or nonexclusive right to use the patented idea or product. That license agreement can give you all the same rights that you would have if you had secured the patent from USPTO yourself.

Purchase Agreement

A final way to secure a patent is to purchase the patent from the current patent holder. A patent is basically a type of personal property, which means the owner of the patent can sell it at any time. If you want total control over a specific idea or invention that is already patented, the purchase agreement is the only way to exclusively secure the patent on that idea or invention. A purchase agreement makes you the new holder of the patent, while a license agreement simply gives you the right to use the patent according to the specific terms and conditions set forth by the existing patent holder.

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How Do Patent License Negotiations Work?

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Principles of Patent Law

U.S. patent law is ultimately based on the federal constitution. In addition, many federal statutes and regulations govern patents. The purpose of patent law is to encourage people to create inventions by offering them a financial incentive to do so. You can sue for patent infringement in federal courts if someone attempts to profit from your patented idea without your permission.

Can You Ever Lose a Patent?

Patents provide legal protection for your unique ideas translated into inventions. This exclusive right to put an invention into the marketplace gives you the ability to earn money from the invention to the exclusion of others. However, patents do not last forever. The U.S. government, in addition to issuing patents, also puts restrictions on the length of their use.

What If a Full Patent Is Not Approved and You Have a Provisional Patent?

In the United States, intellectual property rights are protected by the Constitution. Creative individuals are allowed the exclusive right to control and profit from their works, even if only for a specified amount of time. The U.S. Patent and Trademark Office (PTO) awards patents to inventors upon making a finding that an invention is unique and non-obvious. The patent application process is complicated and expensive, and it typically takes the PTO more than a year to complete its investigation and make a decision. One of the options that an inventor has to control the process is to submit a provisional patent application in lieu of a full non-provisional application; however, the provisional patent application process can mislead the filer into thinking he has existing rights that can be protected.

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