How to Protect Your Invention – The Process
The world is full of inventions and each invention solves a problem. An invention is a unique or novel device, method, composition or process. An invention can serve many purposes. An invention, or a further-developed version of it, may serve purposes never envisioned by its original inventor(s) or by others living at the time of its original invention. The first thing that comes in the mind of the inventor is how can the invention be protected because there lurks an obvious possibility that others may want to profit from or steal your idea. The second aspect is to make commercial gains from your invention so that all the hard work he has put in for the invention may bear fruit. In today’s world of constant innovation and research one can protect his/her invention considering the following:
- Whether the invention is patentable.
- If your invention can’t be patented, what can be done to protect it if such a prospect exists.
The above options available to the inventor are described in the following paragraphs.
Patenting your invention: If the invention is patentable, one can apply for a patent. A patent is a set of exclusive rights granted by a sovereign state to an inventor or assignee for a limited period of time in exchange for detailed public disclosure of an invention. Patents are a form of intellectual property. There are three types of patents:
- Utility patents related to an invention of any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof;
- Design patents related to a new, original, and ornamental design for an article of manufacture; and
- Plant patents related to invention or discovery of asexually reproducing any distinct and new variety of plant.
The grant and enforcement of patents are governed by national laws, and also by international treaties, where those treaties have been given effect in national laws. Commonly, a nation forms a patent office with responsibility for operating that nation’s patent system, within the relevant patent laws. Patents are granted by national or regional patent offices. A given patent is therefore only useful for protecting an invention in the country in which that patent is granted. In other words, patent law is territorial in nature. Applying for a patent in countries like US follows an elaborative procedure as follows.
- Pre-filing: Before the submission of a patent application on needs to verify the novelty search of his/her invention. The basic premise of a patent is that it protects something which has not been done before. A basic patent search should be done as a very first step to filling a patent.
- Filing a provisional application: A provisional application provides an opportunity to place an application on file to obtain a filing date (thereby securing a priority date), but without the expense and complexity of a standard patent application. It gives the ability to the inventor to use the term “patent pending” as a warning to would-be infringers of his/her patent.
- Filing a non-provisional application: The disclosure in a provisional application may, within a limited time (in U.S.), be incorporated into a standard patent application if a patent is to be pursued. Otherwise, the provisional application expires. The non-provisional application thus filed should include a detailed description of the invention including all its aspects therein with relevant drawings and illustration so that the invention is rendered completely disclosed.
- Grant of patent: The patent application is published 18 months from the time of the provisional application and is now present in the public domain. The patent is then examined before being granted. Examination is the process of ensuring that an application complies with the requirements of the relevant patent laws. The entire procedure from application to grant will generally take over 12, and in many cases over 18, months if after examination it is found that the inventor can still be granted a patent after making some modifications.
- Maintenance of a patent: On the outset where a patent provides protection to the inventor, there is an expiry term of the patent. Generally, utility patents expire after 20 years from the application filing date subject to the payment of appropriate maintenance fees. Maintenance fees are due three times during the life of a patent after the date of issue. Maintaining your patent is important if you want patent protection before the patent term expires.
Inventors can also go through the PCT (patent cooperation treaty) route for filing an application if he seeks to use his invention in a number of countries whereby filing one international patent application under the PCT, applicants can simultaneously seek protection for an invention in 148 countries throughout the world which have been covered under the treaty. The Patent Cooperation Treaty (PCT) is operated by World Intellectual Property Organization (WIPO) and provides a centralized application process, but patents are not granted under the treaty. Once the patent is filed as an application in a country it has to go through various steps dictated by the laws of that country before it is granted.
What if the invention is not patentable: The second option as envisaged above of protecting your invention if it is not patentable, is to sign a non-disclosure agreement with the entity who is going to use your invention. A popular form of using such a route is the establishment of a trade secret. A trade secret is information that is intentionally kept confidential and that provides a competitive advantage to its possessor. Trade secrets are protected by nondisclosure agreements and employment law, each of which prevents information leaks such as breaches of confidentiality and corporate espionage. Compared to patents, the advantages of trade secrets are that the value of a trade secret continues until it is made public, whereas a patent is only in force for a specified time, after which others may freely copy the invention; does not require payment of fees to governmental agencies or filing paperwork, has an immediate effect.