October 26, 2021

Volume XI, Number 299

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October 26, 2021

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October 25, 2021

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What Are the Basics of the Patent Process? P.1

In recent posts, we’ve been speaking about intellectual property rights, including trademark disputes. Here, we want to speak briefly about some of the basics of the patent application process and how an attorney can help businesses to navigate that process.

The United State Patent and Trademark Office, in discussing the patent application process, identifies four steps that need to be taken. The first of these is to identify the type of protection needed for the intellectual property, whether it be a patent, trademark, servicemark, or copyright. In a future post, we’ll look at the differences between these various protections. Getting the right form of protection is important to ensure that it is effective and that there are no mistakes that need to be corrected later on down the line.

If the specific type of protection needed is a patent, it must be determined what kind of patent is needed. The two most common possibilities are utility and design patents. The latter is appropriate for those who invent a “new, original and ornamental design for an article of manufacture,” while the former is for those who “invent or discover any new and useful process, machine, article of manufacture, or composition of matter, or any new and use improvement” of any of these.

Another step that needs to be taken is to determine whether the invention is eligible for a patent. This is an important step, because it involves conducting a thorough search of publically disclosed patents to make sure a patent has not already been taken out. Though it is possible to conduct a patent search on one’s own, it is often better to work with an attorney who is registered to practice before the USPTO.

In our next article, we’ll look at what other steps need to be taken before actually applying for a patent, and offer some comments on how an attorney can help with the process. 

© 2021 by McBrayer, McGinnis, Leslie & Kirkland, PLLC. All rights reserved.National Law Review, Volume V, Number 148
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