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Email: invent@bicoastalconsulting.com
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Inventing 101
Turning an Invention Idea Into Money
Understanding Intellectual Property
Patents, trademarks, copyrights, and trade secrets are " intellectual property " - referring to products that come from the creative mind. Intellectual property is imagination made real. Intellectual property is an asset just like your home, your car, or your bank account. Just like other kinds of property, intellectual property needs protection from theft and misuse and you can profit from it. Some people confuse patents, copyrights, and trademarks. Although there may be some similarities among these kinds of intellectual property protection, they are different and serve different purposes.
Patents
A patent gives an inventor the right to exclude all others from making, using, importing, selling or offering to sell the invention for up to 20 years without the inventor's permission. This gives the inventor the opportunity to produce and market his idea, or license others to do so, and to make a profit. In the U.S., a patent is issued by the United States Patent and Trademark Office after reviewing a patent application. A United States patent only protects and provides exclusive rights in the United States. One thing to remember is even if you are issued a patent if someone else has had a patent issued for the same invention before you - your patent rights can be contested or you could contest a patent issued after yours. This is patent infringement and inventors sometimes have to go to court to settle disputes and damages. One way to avoid this is to do a very complete prior art search, more about this later.
Trademarks
Trademarks protect words, names, symbols, sounds, or colors that distinguish goods and services. Trademarks, unlike patents, can be renewed forever as long as they are being used in business. The roar of the MGM lion, the pink of the insulation made by Owens-Corning (who uses the Pink Panther in advertising by permission from its owner!), and the shape of a Coca-Cola bottle are familiar trademarks. These are brand names and identities and are important in marketing a product or service. You can register a trademark or claim common law use (no official registration). Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark.
Copyrights
Copyrights protect works of authorship, such as writings, music, and works of art that have been tangibly expressed. The Library of Congress registers copyrights, which last for the life of the author plus 70 years. Gone With The Wind (the book and film), Back Street Boys' recordings, and video games are all works that are copyrighted. Only the copyright holder can reproduce or profit from his/her works or transfer those rights.
Trade Secrets
Trade secrets are information that companies keep secret to give them an advantage over their competitors. The formula for Coca-Cola is the most famous trade secret.
The above should give you a basic understanding of the different types of intellectual property. The rest of these lessons will be concerned with the intellectual property of patents
only.
.Turning an Idea Into Money
What Can Be Patented?
Creative ideas come from our minds, and inventions are the physical manifestation of those ideas. The part of intellectual property law that covers inventions is patents - granted by a government office (i.e. USPTO) after reviewing an inventor's application, an application that describes your new machine or process and what it can do.
The Three Types of Patents:
• Utility patents protect useful processes, machines, articles of manufacture, and compositions of matter, or improvements to any of the above. Examples: fiber optics, computer hardware, medications.
• Design patents guard the unauthorized use of new, original, and ornamental designs for articles of manufacture.
The look of an athletic shoe, a bicycle helmet, and the Star Wars characters are all protected by design patents.
• Plant patents are the way we protect invented or discovered, asexually reproduced plant varieties.
Hybrid tea roses, Silver Queen corn, Better Boy tomatoes are all types of plant patents.
You can file for both a utility and a design patent for the different aspects of the same invention.
What Cannot Be Patented:
Laws of nature (wind, gravity)
Physical phenomena (sand, water)
Abstract ideas (mathematics, a philosophy)
Literary, dramatic, musical, and artistic works (these can be copyright protected)
Inventions which are not useful (gadgets that do nothing - the USPTO will not patent perpetual motion machines they are considered impossible)
Inventions which are offensive to public morality (the USPTO excludes the patenting of things useful solely in the utilization of special nuclear material or atomic energy for atomic weapons - also anything designed for an illegal activity)
Inventions Must Also Be:
Novel - New.
Nonobvious - This means an invention must be sufficiently different.
For example, the substitution of one material for another, or changes in size, are ordinarily not patentable.
Adequately described or enabled (for one of ordinary skill in the same field as the invention to make and use the invention)
Claimed by the inventor in clear and definite terms. The last two points have very much to do with how the patent application is written.
More about the last four points next and how to determine if your idea is
patent-able.
How Do I Know if My Idea is Patentable?
Advanced and Additional Lessons
• "How To" Qualify for a Patent Application
• Novelty and Other Conditions
• Specifications
• How To Choose a Attorney
Tips on Writing
• Patent Application Descriptions
• Patent Application Claims
Note: We will be referring to USPTO patentability laws in this lesson. However, Europe, Canada, and most other countries have identical requirements. What should be noted as a major difference between countries is the novelty requirement concerning public disclosures.
When an inventor files a patent application with the USPTO, the USPTO examiner looks at the patent application to determine if it qualifies. It should be remembered that even if the examiner grants your application, if there was something that was disqualifying that the examiner missed, your rights could be overturned later. Your patent application will be examined to determine that your intellectual property is:
• Novel
New as defined by law, which provides that an invention cannot be patented if:
(a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or
(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country more than one year prior to the application for patent in the United States.
If the same intellectual property has been described in a printed publication anywhere in the world, or if it has been in public use or on sale in the United States before the date that you did your inventing, your patent application will be rejected.
Or if what you invented has been described in a printed publication anywhere, or has been in public use or on sale in this country more than one year before the date on which you filed an application in the U.S., your patent application will be rejected.
It does not matter if the printed publication or public use was by you or by someone else. If you described your intellectual property in a printed publication or used it publicly, or placed it on sale, you must apply for a patent before one year has gone by, otherwise you lose any rights to one.
Note: Even if the U.S. allows this one-year of grace - most foreign countries do not. You will not be able to file in some countries if any public disclosure has taken place. (An advanced topic would be filing under the Patent Cooperation Treaty or PCT. The PCT is an international treaty that provides standardized filing procedures in the countries that have signed the treaty.)
• Useful
An invention must serve some useful function.
The term useful means that your intellectual property has a useful purpose and it must be operative. If it will not do what you say it does, it could not be called useful.
• Nonobvious
The subject matter sought to be patented must be sufficiently different from what has been used or described before that it may be said to be nonobvious to a person having ordinary skill in the area of technology related to the invention. For example, the substitutions of one material for another, or changes in size, are ordinarily not patentable.
You could interpret this to mean - it has to be different enough to make someone who is skilled in the same area as what you have invented say, "Wow, or why didn't I think of that?" and not, "You can't just make it out of wood and half the size." Proving nonobvious is very important even when your idea is an improvement (the better mousetrap) to an existing product rather than a complete original.
• And Reduced to Practice (Prove it on Paper)
Adequately described or enabled (for one of ordinary skill in the same field as the invention to make and use the invention) and claimed by the inventor in clear and definite terms.
This refers to what is written in the patent application itself - descriptions and claims are called the specifications. The "idea" alone cannot be patented, but your drawings in your journal, your prototype functions or your product can be. In other words - you can't just write, "I have an idea for new alarm clock." You must be able to describe how your alarm works so that an expert in alarm clocks would understand how it works and that it does indeed work.
As a novice, to file your first patent application yourself maybe unwise. However, you "should" write your own patent application and then hand it over to an attorney who is registered to practice before the USPTO. The attorney can use your attempt to write the patent application as a guide and that will save you money. You must also bring along your inventor's logbook, prototype, and any prior art searches along to the attorney (more about that later.)
You must write a complete and thorough description of your intellectual property as you cannot add any new information to your patent application once it is filed. You can only make changes to the subject matter that could be reasonably inferred from the original drawings or description.
"Claimed by the inventor in clear and definite terms" is not as easy as it sounds. Claims define the intellectual property and are what are legally enforceable by law. You can have more than one claim. Claim writing can make or break a successful patent application.
Before even beginning the patent application process - you must search the database of registered and pending patents for similar inventions that have already been patented. More about that next.
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