United States Patents

What is a Patent?

A patent is a right granted to an inventor by the federal government, giving the inventor the right, for a limited time, to exclude others from making, using, selling or importing the patented invention. In the United States, there are three types of patents:

  • Utility patents protect devices, formulas, processes and methods.
  • Design patents protect the non-functional appearance or design of an object of manufacture.
  • Plant patents protect asexually propagated plant varieties.

For any invention to be patentable, it must be useful, novel, and not obvious to a person who is skilled in the field of the invention.

Patentability Search

The patent process is often begun by conducting a patentability search to determine if the invention is in fact novel and non-obvious. A search is not required, but is a valuable tool that can be used to help determine whether a patent application is likely to be successful.

Filing a Patent Application

A U.S. patent is obtained by filing an application that includes a detailed written description of the invention, along with drawings if appropriate, with the U.S. Patent & Trademark Office. A declaration signed by the inventor(s) and government filing fees are also required.

Filing a Plant Patent Application

In the case of a plant patent application, the written description includes a detailed botanical description of the new plant, including quantified measurements and color descriptions that refer to a recognized color chart, such as the Royal Horticultural Society Colour Chart. Color photographs of the whole plant, as well as its leaves, flowers and fruits are also included in most plant patent applications.

Patent Prosecution

After undergoing a pre-examination review to confirm that minimum filing requirements have been met, the application is assigned to an examiner with expertise in the subject area. The examiner will conduct a search, and then correspond with the applicant or the applicant’s attorney regarding the application (called “prosecution”). If prosecution is successful, the application will be allowed and a patent granted upon payment of required fees.

Duration of Patents

Generally, U.S. utility and plant patents are valid for a term of 20 years from the date of filing. Design patents are valid for 14 years from the date of filing. A number of variables can affect the actual term of an issued patent. Maintenance fees are required for utility patents, but not for design patents or plant patents.

More Information on U.S. Patents

The above description of the patent process is simplified. Additional information about patents can be found on the U.S. Patent & Trademark Office website, https://www.uspto.gov/patent.

Practice Areas

  • Plant Patents
  • Plant Variety Protection (PVP)
  • Trademarks
  • Foreign Plant IP Rights
  • Agreements