Starting a business is hard. You have to set up the company, find customers, manage your finances, and so much more. And when you’re first starting out, it might not be clear to you how important it is to protect your patent rights. With so many moving parts already in place, there are more than a few things that could go wrong with your business – from getting sued for patent infringement or finding yourself in a similar situation where someone else is using your ideas without permission.
1. What kinds of products can be patented?
If your product is a new composition of matter or a new machine that does something new, you can patent it. If your product is an improvement on an existing invention, you can patent it. If your product is a useful improvement on an existing invention, you can patent it. If your product is a new and useful improvement on an existing invention, you can patent it.Patents protect your invention, but they also protect you. The better the execution of a new patent, the more advantageous the patent becomes, hence the reason why companies invest so much in their patent portfolios. Patents come with a lot of benefits, such as reduced risk associated with new products and, most importantly, the ability to bring a lawsuit on the invention if something goes wrong. Of course, being able to bring a lawsuit over an invention is not the only benefit of patents: One of the most important benefits that is often overlooked is that patents protect against breach of contract. Because as long as a contract allows for its enforcement, patents do not need to be purchased. Moreover, because patents protect against infringement, they can be used to prevent others from making similar, but at least in some ways inferior, products.
Patents establish a legal right that says: I own my invention and I have the right to enforce it. Protecting the patent is not enough to make it effective; instead, using patents makes the whole process stronger because it builds credibility and establishes the validity of the patent. For instance, patents can also act as a guarantee that other parties are not infringing. Thus by securing patents you build trust with your potential customers, establish that you are trustworthy, and create a strong deterrent against others copying your idea.
A patent can also apply to any new invention. So for instance, if you make an improved version of an existing composition of matter or machine, you can patent it even if there is nobody who is using the improved version commercially.
2. How to find out if your product is patentable and if someone else has already patented it
When you’re creating a product or service, you should consider whether or not it’s patentable. If you want to know whether it’s patentable, you’ll need to do your research to make sure you aren’t infringing on anyone else’s patents.Before you can determine whether your idea is patentable, you should first understand what makes your idea patentable. Patentability is determined by an examination by the United States Patent and Trademark Office (USPTO). A patent is analogous to an intellectual property right (see image below). The USPTO enforces patent laws and determines if particular ideas are patentable.
Patents can prevent others from copying your ideas, or they can benefit you. Patents can protect your cultural contributions, for example. The traditional model of IP in which one company owns all the intellectual property (IP) and others are only allowed to use pieces that are publicly available, often referred to as “public domain” ideas, can be broken down. Companies like Apple, Uber, and not-for-profit software organizations like Creative Commons license many public domain ideas without paying licensing fees. But some patents provide significant protections and allow you to benefit from certain public domain ideas without paying additional fees.
Patents can primarily be categorized into three main categories: originality, utility, and architectural.
The idea for your invention typically comes from a creative source (this belongs to the originality category). There could be an existing patent, published research, or other publicly available source that qualifies as the “idea for an invention”.
If the idea qualifies as being original, then the pieces that make up the invention can be considered “substantially the same” as the original source or as comparable. You can learn more about the originality requirement here.
You are also considered to have invented if one or more of the following apply:
Finally, if the idea is considered vendable (either for criticism or commercialization), and one of the requirements for originality applies, then the idea can be considered patentable.
3. How to apply for a patent and what you need to include in the application
There are many things you need to take into consideration when you’re applying for a patent. The first thing you need to do is decide on the type of patent you’d like to apply for. There are three types of patents: design, utility, and plant. Design patents are for the ornamental design of an object.Utility patents are for marketing your new product. And plant patents cover new ways of growing things.
The first thing to do is to decide on the type of patent you’d like to apply for. It’s important that you know what category your idea falls into before you start looking for potential intellectual property lawyers. Each type of patent has specific statutory protections that exist to promote discovery. So, before you start looking for a patent attorney, take a little time to familiarize yourself with the current law in your particular area.
To be eligible for a design patent, you must use your imagination to create a finished product that is original, distinctive, and not merely recent. You have to use your imagination in its entirety, not just a few sentences from a book or webpage.
To be eligible for a utility patent, your product must be commercially useful. You can use a single device to perform a task or include several technological components that work together to create a more complex product.
To be eligible for a plant patent, your product must reproduce a type of naturally occurring plant. It can be a seed, seedlings, flower, fruit, nut, perennial herb, or ornamental plant, and it has to be static and incapable of moving.
As you can see, whether you want to build your business around a new idea, a new technology idea, or a new plant is contingent upon the type of patent you’re applying for. Each patent has different statutory protections that you need to be aware of before taking steps.
If you don’t have much capital, it might be helpful to consider a smaller, less expensive business with smaller expectations to start.
4. Tips for making your patent stronger and more difficult to challenge
To make your patent stronger, you should try to include as many different types of claim as you can. The more claim types you have, the less likely your patent will be challenged. What are the different claim types? There are four types of claim: independent, dependent, multiple dependent, and alternative. Independent is “isolated” patent claims. It means that if you ever want to sell or use these claims, you have to hire someone else to do the work. The best way to protect this claim type is to limit how long it can be used. For example, if you want to add a new feature to your application, you could patent that feature, separate it into its own patent, and add the limitation to your next patent application.
Competing against other companies for the same customer base is hard. Patents can make it hard for any company to stand out. Your competitors could use your intellectual property against you, infringing your patents to gain advantage over you. If you do decide to go head-to-head with another company, you need to understand how you will protect yourself from infringement. How do you prevent another company from using your patent without your permission? You can patent something like an algorithm or a mechanical ability. This strategy prevents entities from using your invention for their own gain without paying you any royalties. A company can apply for a patent, but this doesn’t grant them the right to avoid infringement, meaning that they can still be sued for infringing your invention in court.
A company also needs to protect its intellectual property against patent trolls. These types of companies are non-practicing entities (NPEs), or individuals or companies that acquire patents without ever intending to use them or sell the patents to others. NPEs eventually sell their patents to large corporations who either never use them in their product line or use them to sue smaller inventors in patent litigation. Patent trolls try to buy up patents from smaller companies in order to sue them for infringing on their patents.
Comments