SCORE

What Is a Patent?

The United States Patent and Trademark Office (USPTO) defines a patent for an invention as “the grant of a property right to the inventor.”

A patent helps protect the mechanisms, principles, and components of an invention. The term for a small business patent starts on the date its application is filed with the USPTO. Generally, this lasts for 20 years. Patents tend to be filed less frequently than trademarks and copyrights within small businesses. However, this is still a necessary form of intellectual property protection for inventions.

How to determine an invention is patentable

How do you determine that your invention is patentable?  A patentable invention is defined accordingly by the USPTO: “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefore, subject to the conditions and requirements of this title.”

The USPTO further breaks down the four requirements of a patentable invention.

  • “A” patent: This is singular. Only one patent may be granted for each invention.
  • Useful: The invention must have a specific, substantial, and credible utility.
  • Process, machine, manufacture, composition of matter: This is a description of the subject matter, and categories, eligible for patenting.
  • Whoever invents or discovers: The inventor is the only person who may obtain the patent.

Three types of small business patents

Once you determine your invention is patentable, you must figure out what kind of patent you need before filing for a small business patent. It’s important to understand which patent type is the right fit for your invention. Presently, there are three types of patents:

  • Utility patents
  • Design patents
  • Plant patents

Let’s explore how each patent protects a specific type of invention. Once you understand which patent is the closest categorization for your invention, we’ll look at how to apply for a patent.

Utility patents

Utility patents are among the most commonly filed small business patents with the USPTO. This type of patent may be a useful process, machine, article of manufacture, composition of matter, or new or useful improvement. These are four categories of statutory subject matter and may be defined accordingly.

  • Process: This is an act, or series of acts or steps, typically from an industrial or technical process.
  • Machine: The USPTO defines machine as “a concrete thing, consisting of parts, or of certain devices and combination of devices.” Essentially, this is the literal meaning of inventing a machine.
  • Manufacture: These are articles made by the invention. They may be produced from raw or prepared materials and through either hand labor or by machinery.
  • Composition of matter: This is the chemical makeup of the invention. It may be composed of two or more substances and all composite articles. This may be gases, fluids, powders, or solids.

A fifth category may also apply to the word “useful.” The invention must be able to operate and have a useful purpose. For example, a new search engine is a type of software that may qualify as a utility patent.  

A utility patent also has the option to file as a provisional or nonprovisional application.

What’s the difference between the two terms? Provisional applications are a low-cost patent filing. Applicants may establish a filing date in the United States for their invention. Then, they may file a nonprovisional application to claim the invention later. Nonprovisional applications are reviewed by a patent examiner. If the invention is considered patentable, the utility patent application is filed with the USPTO.

Design patents

A design patent is granted to anyone who invents a new, original, and ornamental design for an article of manufacture.

How does this small business patent differ from a utility patent? A utility patent will protect the use of an article. Design patents protect the appearance of an article, but not its structural or functional features. Famous design patents include the Statue of Liberty and the original curvy Coca-Cola bottle. A recent example of a design patent are emojis, protecting the look and appearance of the digital icons.

The terms for a design patent, as effective May 13, 2015, may last 15 years from the date of the patent grant. Prior to 2015, the term was 14 years. This provides small businesses with over a decade’s worth of patent protection.

Plant patents

One of the most unique small business patents is the plant patent. This patent may be granted to anyone that has invented, discovered, or asexually reproduced a distinct, new variety of plant. Here are a few examples:

  • Cultivated sports
  • Mutants (this is only applicable if the mutant is discovered in a cultivated area)
  • Cultivated hybrids
  • Newly found seedlings
  • Algae and macro-fungi
  • Asexually propagated plants reproduced through means other than seeds, such as layering or budding.

Plants that would not be eligible for a plant patent include existing plants, such as roses, bacteria, and edible tuber reproduced plants like potatoes.

A plant patent’s terms are for 20 years from the date of the patent’s application filing. Similar to that of a utility patent, a plant patent may file a provisional or nonprovisional application. The inventor filing this application must be the same person that invented, or reproduced, the plant they wish to patent.

Applying for a patent

By now, you likely have a good idea as to which small business patent is best for your invention. The next step is to get ready to apply for a patent.

As you prepare to apply for a patent, keep in mind the following.

  1. What is your application strategy? You may choose to file as yourself (Pro Se) or work with a patent attorney or agent.
  2. Will you file a provisional or nonprovisional application? This may be contingent on the type of small business patent you are filing.
  3. Do you have enough money set aside for fees? There are several fees associated with filing a patent, including application fees, search fees, examination fees, and issues fees.
  4. How soon do you need the patent? You may consider expedited examination options to file for and receive patent approval sooner.
  5. Do I have everything I need for my application? Your patent application materials may require an oath or declaration, drawings, and additional written documents. Make sure you understand each required part necessary for obtaining your patent and include it with your application.
  6. Will I mail my application or submit it online? Double-check everything prior to making this last step to ensure your application is complete. Remember that once your application has been filed with the USPTO, you will not be able to add new items to it.

Patent approval and next steps

If your patent is approved, congratulations! You will receive notice of approval and a patent grant that is mailed to you.

After receiving your small business patent, make sure to maintain the patent over the years. Pay any maintenance fees on time to ensure it does not expire and check the status as needed for this valuable piece of intellectual property.

About the Author(s)

 Deborah  Sweeney

Deborah Sweeney is the GM & VP, Small Business Services at Deluxe Corporation. She is an advocate for protecting personal and professional assets for business owners and entrepreneurs.

General Manager and Vice President, Small Business Services at Deluxe Corporation
file titled patent pending