Patents: Types & Requirements for Getting One

In my last post, I defined what a patent is, how to use them in a way that’s useful and adds value to a business, and how to think about whether to patent an invention. Today, I’ll discuss the 3 types of patents, requirements for getting one, and the patent term. In my next post, I’ll discuss the invention disclosure and patent application process. 

Patent Types

There are 3 types of patents in the US: utility patents, design patents, and plant patents. Utility patents cover novel, non-obvious and useful products, processes, machines, and devices. Design patents cover new, original and ornamental designs of manufactured articles. Plant patents protect certain distinct and new plant varieties. Because most inventions that are patented are utility patents, especially for startups, I’ll cover requirements for utility patents below.

Requirements for Filing a Utility Patent

• Patentable subject matter: Eligible subject matter include processes, machines, articles of manufacture, compositions of matter, and improvements to any of the above. Laws of nature, natural phenomena, and abstract ideas are not patentable, and the USPTO applies extra scrutiny to business methods, biotechnology inventions, and medical treatment methods.
• Utility or usefulness: The invention must be useful; this is generally an easy bar to meet.
• Novel: The invention must be “novel” relative to existing, publicly available technology, known as “prior art”. There must not be any single item of prior art that discloses all of the features of that invention.
• Nonobvious: The invention must be nonobvious to a hypothetical person of “ordinary skill in the technical field” of the invention, factoring in: the scope and content of the prior art, the level of ordinary skill in the technical field of that invention, and examining the differences between the invention and the prior art. 

A patent attorney experienced in filing patents in your industry can make the determination as to patentable subject matter, novelty, and nonobviousness. Most often, the USPTO will reject an application on the nonobviousness criteria, and an experienced patent attorney can work with you to make necessary modifications.

Patent Term

For utility patents, the term starts on the patent issuance date and continues for 20 years from the filing date of the earliest nonprovisional application. Because examination can take 2-3 years, you often only get patent protection for 17-18 years from the issuance date, unless you get a term extension for your patent, which may be granted in certain cases. Design patents have a term of 15 years from the grant date. Plant patents expire 20 years from the filing date of the application. Upon expiration, the subject matter of the patents are in the public domain.