What is intellectual property?
IP is creative works or ideas embodied in a form that can be shared or enable others to recreate, emulate, or manufacture them.
Patents, trademarks, copyrights, and trade secrets are different types of IP. The USPTO grants patents and registers trademarks, while copyrights are registered by the U.S. Copyright Office at the Library of Congress.
Do you know what types of IP you might have? Do you know how to protect them? Use the USPTO’s IP Identifier to find out the types of IP you might have and learn how to protect them. Start with six basic questions to help identify your IP, then dig in deeper with the advanced questionnaire for each type of IP.
What is a patent?
A U.S. patent gives you, the inventor, the right to “exclude others from making, using, offering for sale, or selling” an invention or “importing” it into the U.S. A plant patent gives you additional rights on the “parts” of plants (e.g., a plant patent on an apple variety would include rights on the apples from the plant variety). What is granted is not the right to make, use, offer for sale, sell or import the invention, but the right to stop others from doing so. If someone infringes on your patent, you may initiate legal action. U.S. patents are effective only within the U.S. and its territories and possessions.
Types of patents
These are the three types of patents:
Utility patents for inventing a new or improved and useful process, machine, article of manufacture, or composition of matter.
Design patents for inventing a new, original, and ornamental design for an article of manufacture.
Plant patents for inventing or discovering and asexually reproducing any distinct and new variety of plant.
How long is a patent valid?
Utility and plant patents have a term for up to 20 years from the date the first non-provisional application for patent was filed. A design patent is granted for a term of 15 years from the date of grant. You will need to pay maintenance fees on a certain schedule after the utility patent is issued in order to keep it in force. Under certain unusual conditions, patent terms may be extended or adjusted.
What can be patented?
Legally, a utility patent may cover “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” A design patent may cover “any new, original, and ornamental design for an article of manufacture,” and a plant patent may cover a “distinct and new variety of plant, including cultivated sports, mutants, hybrids, and newly found seedlings, other than a tuber-propagated plant or a plant found in an uncultivated state,” invented or discovered and asexually reproduced.
So, for a patent to be issued, your invention must meet four conditions:
- Able to be used (the invention must work and cannot just be a theory)
- A clear description of how to make and use the invention
- New, or “novel” (something not done before)
- “Not obvious,” as related to a change to something already invented
Patent law defines the limits of what can be patented. For example, the laws of nature, physical phenomena, and abstract ideas cannot be patented, nor can only an idea or suggestion. Other restrictions include the patenting of inventions exclusively related to nuclear material or atomic energy in an atomic weapon (see MPEP 2104.01). However, the subject matter that can be protected by patents is vast and varied. For example, even some methods of doing business may be patented. To learn more, visit our Business Methods page.
Who may apply for a patent?
You (the inventor) or your legal representative may apply for a patent, with some exceptions. These include if the inventor has died, is legally incapacitated, refuses to apply, or cannot be found. Two or more people inventing something together may apply for a patent as joint inventors. A person (e.g., a company) to whom an inventor has assigned an invention, or to whom the inventor is obligated (e.g., contractually required) to assign an invention, may also apply for a patent.
If you only contribute money but are not the inventor or co-inventor, you cannot be named as an inventor or co-inventor in the patent application. Furthermore, if you are not the inventor, and the inventor(s) did not assign the invention to you or does not have an obligation to assign the invention to you, you may not apply for a patent. USPTO employees cannot apply for or own a patent unless they inherit it.
What about foreign applicants for U.S. patents?
You may apply for a U.S. patent whether you’re a U.S. citizen or not. No U.S. patent can be issued if, before you apply in the United States, the invention was patented abroad by you or your legal representative and if the foreign application was filed more than 12 months before the U.S. filing. Six months are allowed in the case of designs. Foreign inventors should pay attention to other special requirements.