Utility Patents

Utility patents protect an invention that embodies a new process, machine, manufacture, composite matter, or a new, useful improvement thereof. The life of a utility patent is twenty years from its filing date, subject to paying maintenance fees due on the fourth, eighth and twelfth year.

Design Patents

The difference between a utility and design patent is simple. Utility patents deal with the structure and operation of the invention and design patents relates to the ornamental features of an invention. The ornamental feature or characteristic may be the shape of the invention, but it is not an artistic embellishment.

The life of a design patent is 14 years from the issue date.

Plant Patents

This patent excludes others from making, using, or selling a plant or seed. The protected plant is distinct, invented, or a newly discovered asexually reproduced plant, which includes cultivated sports, mutant, hybrids, and new seedlings. Tuber plants can not be patented. The life of a plant patent is 20 years from the issue date if maintenance payments are made on the fourth, eighth and twelfth year.

Reissue Patents

A reissued patent corrects an error in an already issued utility, design or plant patent. The life of the original protection is not affected by the issuance of a reissue patent.

There is risk involved when you file an application for a reissue of a patent. The process involves a complete new examination of all facets of the original patent and the errors sought to be corrected. This may result in cancellation of the original patent, or a narrowing of the scope of the original patent.

Provisional Applications

A provisional application is recognized worldwide. When you file the provisional application, you are granted the priority rights as of the filing date with respect to the information disclosed in the application. A provisional application has a term of one year during which a domestic or foreign patent application must be filed in order to have the benefit of priority obtained through the provisional application.

Defensive Publication

A defensive publication is an inexpensive procedure to establish evidence of information possessed as of the date of filing the publication in the United States Patent and Trademark Office.

In a contest between two inventors as to which is the true first inventor, the date of filing provides evidence supporting ownership of the matter disclosed. Many foreign countries recognize the filing of defensive publications.

Foreign Patents

A patent is only enforceable within the boundaries of the sovereign state granting the patent. In order to protect the intellectual property outside of the United States, procedures must be undertaken in the respective country(ies) of interest.

Prior to filing in a foreign country, a foreign filing license must be obtained.

The Patent Cooperation Treaty provides a time period of 30 months from the date of priority to file a patent application in a foreign country, provided that there has not been a sale, public use or description in a printed publication prior to the date of priority.

The United States has a one year grace period from the first sale, offer for sale, public use, or description in a printed publication of the invention. Most foreign countries do not have such a grace period.

In some foreign countries, the invention must be “worked” within three to five years of the grant of the patent. If the invention is not worked, a third party has the option to bring a proceeding to cancel the patent or to obtain a compulsory license under the patent. This can be circumvented by filing a document that recites on-going efforts to commercialize the invention in the foreign country of interest.

There are usually annual patent maintenance fees that are required to keep a foreign patent active.

The Paris Convention for the Protection of Industrial Property is a treaty that 140 countries, including the United States, have agreed to follow. It guarantees that the citizens of the other 139 member countries will be granted similar patent and trademark protection it gives to its own citizens.

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