Answers to Frequently Asked Questions About Patents


What Is A Patent? 

An inventor who obtains a patent can prohibit others from using, making, or selling the invention claimed in the patent, within the United States, during the term of the patent.  The term of the patent commences when a patent is granted and ends twenty years after the patent application is filed.  During that term, anyone who wants to make or sell the claimed invention must get permission from the patent holder.  The patent holder can decide whether to allow others to use the invention, and can require those to whom permission is given to pay a royalty determined by negotiation.


The term "patent" usually refers to what is technically a "utility patent".  It is also possible to apply for a "design patent", which simply protects the aesthetic design of an existing useful article for fourteen years.  An invention qualifies for a utility patent if it is a new and useful article, composition of matter, machine, or method, which is novel and not obvious to people skilled in the relevant area.



Should I Consider a Patentability Search? 

Usually the first step toward obtaining a patent is to have a patentability search conducted.  It is possible to file a patent application without a search first being conducted.  However, we strongly advise having a search done for two reasons.  First, the search may reveal prior patents which are significantly similar to the invention being searched, and which would make it unlikely that a patent could be obtained.  Second, it is possible to write a better patent application when search results are available, so the patent attorney writing the application can distinguish earlier mechanisms revealed by the search from the invention being claimed.



How Do I Start a Patentability Search? 

We commission patent searches through a Washington, D.C. patent search firm.  To commission a search, we send to that firm a written description of the invention, explaining how the invention works and why it is better than the presently available alternatives.  It may be helpful to send drawings, photographs, and a prototype as well, to help the person doing the search to understand the invention.  Thus, prior to commissioning a search, we must obtain from the inventor the written description and other materials to be sent to the patent search firm.



How Much Does a Patentability Search Cost? 

A patentability search for a simple mechanical invention usually costs between $850 and $950, although the actual cost will not be known until after the search is done, and may be higher than $950.  Search results are usually available in three to four weeks.  Prior to commissioning the search, we obtain a $900 retainer from the inventor to be held in our trust account until we receive the bill of the firm doing the search.



How Much Does a Patent Application Cost? 

If the patent search results are favorable, then the inventor may choose to proceed with a patent application.  Each patent application is different, and the price varies based on how much work is involved to write the application.  It is possible to provide a good estimate of the cost of preparing the patent application after we have seen the patent search results.  For a simple mechanical invention, preparation and filing of the patent application generally costs between $6,000 and $7,000, including attorney's fees and filing fees payable to the Patent and Trademark Office.  Separate drafting costs are frequently required as well.  Prosecution of the patent usually lasts one to two years after the application has been filed, although it may take longer.  Attorney time, billed at our normal hourly rates, may be incurred at several points during that period of time, although the amount of attorney time required at each point is very difficult to predict.  If the patent is allowed, an issue fee is payable to the Patent Office.



Can I Write My Own Patent Application? 

Yes.  The Patent and Trademark Office will accept patent applications written by the inventor if all of the required components are included.  If the inventor wishes to hire someone to write the application, only a patent agent or patent attorney registered with the Patent and Trademark Office may prepare that application.  A patent agent or patent attorney can be registered with the Patent and Trademark Office only after successfully completing the patent bar examination.  Linda Gould of Gould, Whitley & Marshall is a registered patent attorney.



What Does "Patent Pending" Mean? 

The term "patent pending" means that a patent application has been filed with the Patent and Trademark Office, and has not yet been finally rejected nor allowed.  Thus, an invention typically has a patent pending for the year or longer period in which the patent application is processed.  The inventor obtains no legal rights as a result of the patent application being filed, but a "patent pending" notice may cause would-be competitors to reconsider incurring costs to manufacture the invention since they may be forced to cease selling the product if and when a patent issues.



Are There Any Deadlines By Which a Patent Application Must Be Filed? 

Yes.  Please consult a patent attorney to discuss the details of your invention and determine what deadlines may be applicable, since there are a variety of deadlines dictated by statute.  Among other pertinent deadlines, a patent application must be filed within one year of the invention being used in public or sold to the public.  If the patent application is not filed by a relevant deadline, the inventor will not be permitted to seek patent protection.



What Is A Non-Disclosure Agreement? 

A Non-Disclosure Agreement, sometimes referred to as a trade secrecy or confidentiality agreement, is a contract between an inventor and another party.  The document should be signed by anyone to whom you wish to provide information about your invention, so that they will be bound not to use or sell your invention without getting your permission.  Non-Disclosure Agreements are not as effective as patent protection, and there are legal ways to avoid the requirements of a non-disclosure agreement.  Nevertheless, it is preferable to have a non-disclosure agreement signed prior to disclosing the invention.  If you tell others about your invention without patent protection and without obtaining a signed non-disclosure agreement, it is likely that a court would find they had an unlimited right to use your invention, without any payments being made to you.



How Much Does A Non-Disclosure Agreement Cost? 

We charge a flat fee of $400 to prepare a non-disclosure agreement which is tailored to your invention.  The agreement will be printed with a blank space for the name of the person to whom information about the invention is being given.  In this way, you can make as many copies of the form you want, and fill in a different named person in the blank space, without having to return to your attorney to have a new non-disclosure agreement prepared for each person with whom you are discussing the invention.



How Do I Start the Patent Process? 

Please call us at 719-531-0994, or e-mail Linda Gould.


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