Look around. Just about everything you see or touch is patented —or at least was at one time. Toothbrushes, television sets, Macintosh computers, and even those ergonomic chairs, aren’t just great ideas someone came up with and decided to share with the world. They are all protected by some type of patent. ‘Whoa! There are different types of patents,’ you ask? Why, yes, I reply. As a matter of fact, there are three.

But, before we get into the nitty gritty let’s clear up one little thing. Just what exactly IS a patent? Well, a patent gives an inventor the exclusive right to make, use or sell an invention for twenty, seventeen, or fourteen years, depending on the type—utility, design or plant. All three types of patent are obtained by filing an application under federal law.

Utility patents last twenty years and apply to new and useful processes, machines, manufacture (objects made by humans or machines), compositions of matter, or any new and useful improvement of the above. These are further subdivided into mechanical, electrical and chemical patents.

The second type, design patents, apply to new, original and ornamental designs for an article or manufacture and last seventeen years. While the last type, plant patents, last fourteen years and apply to any distinct and new variety of plant invented or discovered and asexually reproduced. This excludes root-generated plants or a plant found in an unplanted state.

Patents are often confused with copyrights and although there is some resemblance, they are different and serve different purposes. There is more to know about patents, however, before you go out to invent or redesign something. First and foremost is, who needs a patent? Well, anyone who invents something or creates a new way to use an existing invention—and wants credit for it—needs one.

According to law, only the inventor of a process or device may apply for a patent, with certain exceptions, of course. If the inventor is deceased, for example, an application can be filed by the administrator or executor of the inventor’s estate. If the inventor is insane (wouldn’t you know they’d have a clause to deal with the stereotypical ‘mad professor’?), an application can be filed on their behalf by a guardian. Or, if the inventor refuses to apply for a patent or cannot be found (hopefully they’re not at the bottom of the river wearing cement shoes), a joint inventor or person having a proprietary interest in the invention can apply on behalf of the non-signing inventor.

Another basic question to ask is ‘what can be patented?’ In order for an invention to be patentable it must pass four tests. First, it has to fall into one of five statutory classes of patentable things: processes, machines, manufactures, compositions of matter, and new uses of any of the above. Second, it must be useful, meaning it must not merely be a theoretical phenomenon. Third, the invention must be novel, that is, something no one has ever done before. Finally, it must be unobvious to a person having ordinary skill in the art to which this subject matter pertains. This last requirement is one on which most patentability disputes are based.

With so many tests and restrictions, the patent process must be difficult, right? Not really. But before delving into an earth-shattering invention project, be sure someone else hasn’t done it first. Without conducting preliminary research, the application process may

be pointless. Aspiring inventors can go to the public search room at the United States Patent and Trade Office in Crystal City, Va. to research existing patents. Or, for those of you who find it inconvenient to travel to Crystal City, you can search the IBM, PTO or other patent-related sites on the web. In addition, patent depositories, containing resources that allow you to review the titles of patents, are located in many major cities throughout the country.

After researching existing patents (and finding that your invention idea is original,) the application process can begin. According to Steve Garbe of the U.S. Patent and Trade Office, the process begins with a detailed written description of the invention and a drawing, if applicable. The description should include claims defining the legal boundaries of the invention, such as its purpose and intended use. Once this information is complete, an application and application fee can be filed with the PTO. This must be done within one year from the date the invention was sold, offered for sale, or described in a printed publication anywhere in the world. If any of these events have taken place and an application is not filed within this timeframe, a patent will not be granted. In lieu of applying and paying for a full patent application, it is also possible to file a “provisional patent application” with the PTO. This is designed to be a relatively low-cost way of postponing the cost and effort of drafting and filing a full application. The provisional application doesn’t need to contain claims, and the filing fee is modest —$150 for large inventions and $75 for small ones. After filing a provisional application, the inventor must then wait one year to file a full patent application, postponing by a year the beginning of the patent term.

After a full patent application is filed, the PTO examines it and responds with a ruling in about three months. A ruling will not be passed on a pending provisional application until a full application is filed. More often than not, unfortunately, an inventor’s first application is rejected. If so, the Office will explain why the invention has been rejected, giving the inventor the opportunity to amend the application and claims for resubmission. After the second submission, the Office will offer a final action. If the application’s claims are rejected again, a new application and fee must be filed and the process begins again. Each application has two chances—original application and an amendment—or the inventor can submit (and pay for) a “continuing application.” This process can go on until a patent is awarded or the inventor’s bank account runs dry.

This introduces another point: the patent application process is expensive. A few inventors prepare their own applications to avoid costly patent attorney fees, which can range from $4,000 to $10,000 (and this is one case where size doesn’t matter. Patent attorneys will charge the same for their services whether the invention is as large as a turbine or small as a paper clip). Plus, in addition to attorney fees, an inventor may also have to pay for market research, the cost for which depends on the particular invention as well as the market in which it is tested. And while all of the expense may be returned many fold, the initial expense of applying for a patent can be quite costly. Generally, the patent process takes an average of one year from initial application submission to the final issuing of the patent. The process can be prolonged by legal review, which might require rewriting the description.

The cost of applying for a patent can sometimes determine how an inventor applies. A small percentage of inventors (conflicting figures report two percent and twenty percent) prepare their applications pro se, or on their own, to avoid costly attorneys fees. However, unless they are familiar with the patent process or study it in detail, they may experience significant difficulty. Garbe advises inventors against going through the patent process alone. Although patent attorneys can be costly, they are experienced in the application process, drafting claim language, and are more attentive to filing due dates.

The patent process may seem complicated, but with a little research and professional help, great ideas today can become great products tomorrow. Aspiring inventors should note that a patent is the legal right to exclude others from making, using or selling something, NOT the right to make, use, or sell it oneself. In English, the term “license to sue” doesn’t oversimplify matters too much.