The best-known areas of Intellectual Property: Patents, Trademarks and Copyrights

A Patent oftentimes protects things which have some sort of function. Before filing a patent application, you should have Michael L. Greenberg, our registered patent attorney, perform a patent search to find out if your idea appears patentable. A patent search provides you with patents similar to your invention, and in applying for a patent, you explain to the Patent Office why your invention is novel and not obvious in light of those inventions.

The best-known patent application is the Utility patent application (sometimes called a non-provisional utility patent application). In filing this type of patent application, one aims to protect the structure that allows for certain functionality of an invention. A prime example is a broom. It has the function of allowing dirt and other things on the ground to be gathered more easily than if a person would merely use his hands.

Then there is the Provisional patent application (sometimes called a provisional utility patent application). This application is a tool which has been added to the patent attorney’s bag of tricks in the last few decades. It is an application which is designed to allow a person to file for an application quickly because it does not have to have claims. Claims are the legally operable part of a patent application, though other parts of the application (in particular the detailed description) may be used for purposes of claiming a priority date. The Provisional patent application has a lesser filing fee than the Utility patent application and will expire if it is not upgraded to a Utility patent application within one (1) year of filing. The Provisional patent application does give the inventor(s) a priority date and patent pending status – this alone is a goal for many inventors.

Many things are patentable under the rubric of the Utility or Provisional patent application other than the common “thing that has a function.” Over the last few years the rules regarding software patentability have been in flux — sometimes a machine performing a function is patentable, i.e. a method might be patentable if claims are written including the computer upon which it is going to run, with the computer actually performing the method. Recently, business plans have also become patentable to some extent, although again, the law is in constant flux.

Then there is the Design patent application. With this application, one may protect the look of an invention when that look is separable from the function of the thing itself. The best example of a Design patent application is a bicycle rack in which the steel tube to which the bicycle will be locked looks somewhat like a snake. The concept of having a fixed locking mechanism for a bicycle is not patentable because it is known already; and such an invention would most likely receive a rejection because it is known already. But what might well be “protectable” is the look of the bicycle rack. The look is done with a Design patent application.

The above three patent applications are the best known and comprise the majority of all patent applications filed. But there is another type of patent application, which though not as well known, is a powerful tool in the right situation. This application is the Plant patent application. This application will protect the invention of a way of making a new type of plant which has been created via asexual reproduction and is a new or original variety of plant.

If foreign patent protection might be desired, then one international patent vehicle is the Patent Cooperation Treaty (PCT) application. This is an application which is filed under the treaty for purposes of receiving a priority date in all countries which are signatories to the treaty. Most American, Asian and European countries are signatories. The PCT application will sometimes be looked at more quickly than a Utility patent application filed in the US Patent Office.

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