Reasons a Patent May Be Denied
Jan. 1, 2022
In Fiscal Year 2021, ending September 30, 2021, the U.S. Patent and Trademark Office (USPTO) received 650,654 patent applications, down about 3,000 from the year before. In the same year, the USPTO granted 374,006 patents.
A patent is generally thought to be awarded for an invention, such as a new machine or device, but patents also cover processes, designs, and even new plant varieties.
Though the office granted 374,006 patents in 2021, most were no doubt submitted in prior years, as it can take up to 16 months or more to qualify for a patent. In the meantime, you have the protection of a “patent pending” classification.
If you’ve submitted a patent and were denied, you have a right to appeal. If you’re in the Kansas City, Missouri, area or anywhere in Jackson County, Missouri, or Johnson County, Kansas, contact Ream Law Firm, L.L.C. Attorney Dale J. Ream can assist you in filling out the required application and supporting brief where you make your case for reconsideration.
Types of Patents
The USPTO defines a patent as granting “the right to exclude others from making, using, offering for sale, or selling” the invention in the United States or “importing” the invention into the United States.
The agency lists three types of patents that are available:
Utility Patents: These are what most people think of when they hear the word patent. A utility patent is granted to anyone who “invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof.”
Design Patents: Granted to anyone who invents a new, original, and ornamental design for an article of manufacture
Plant Patents: Granted to anyone who invents, discovers, or “asexually reproduces” a distinct and new variety of plant
The first step in applying for a patent is to do a patent search to determine whether anyone else has already secured rights to the invention, process, design, or plant for which you’re applying. A patent search can be a tedious, arduous process, so enlisting the aid of an experienced attorney is essential for this step.
Once you have completed your search, you can submit one of two types of applications for utility and plant patents: provisional and nonprovisional.
A nonprovisional application begins the examination process by the USPTO and may lead to a patent. A provisional application establishes a filing date but does not begin the examination process. Design patent applications must be nonprovisional.
Both types of applications provide patent-pending status. The provisional application allows additional time to prepare specifications, drawings, and other required supporting documents, but it expires one calendar year from the date of filing.
Reasons a Patent Application May Be Denied
After what it calls its examination period, the USPTO may notify you that your patent has been denied. Your application may be denied if the examination determines:
Your invention is not novel: The invention is not unique enough from another patent that the examiner found. That’s why you need to conduct an exhaustive patent search in advance of applying.
Your invention is obvious: If your invention doesn’t reveal inventive ingenuity, your application may be denied. If your invention lacks unique and distinguishable features, there’s a good chance it will be denied.
Your application is improperly constructed: If there are errors in the application or you supplied inadequate details about your invention, it can be denied.
If you are denied, you have two options: refile or appeal. If you appeal again, it will go before the Board of Patent Appeals and Interferences (BPAI). If you refile, you must ensure that you address the reasons for your denial, for instance, by supplying more technical details to separate your idea from previously submitted ones.
How Legal Counsel Can Help
The patent process is a complicated and demanding one, beginning with the searching and then filing properly with enough detail and supporting evidence to back your claim for an exclusive patent.
Attorney Dale J. Ream has been a registered patent attorney for 25-plus years and has successfully shepherded 850 applications through the USPTO process.
If your patent has been denied, reach out today for a consultation. Ream Law Firm, L.L.C. proudly serves clients in Kansas City, Missouri, throughout Jackson County, Missouri, and Johnson County, Kansas.