Patent Lawsuits: Frequently Asked Questions

• What is a patent?
• How do I file a patent?
• I've heard of something called a poor man's patent. What is this, and is it real?
• What type of patent is right for me?
• I see commercials on TV all the time from invention submission companies. Are they for real?
• It seems patents have been in the news a lot lately. Why?
• What do I do if I believe someone is infringing on my patent?

What is a patent?
A patent is essentially a contract between an inventor and the U.S. government which gives the inventor the right to exclude others from making, using, selling or importing the claimed invention.

How do I file a patent?
If you have an invention you want to patent, you will need to file an application with the U.S. Patent and Trademark Office (USPTO). On the application, you will need to fully disclose how to make and use your invention.

The USPTO has a long list of requirements that must be followed exactly, and what occurs during the drafting and prosecution of your patent can affect your patent scope. Therefore, we recommend that you enlist an experienced patent attorney or agent to help you prepare and process your patent. While this is more expensive, you will most likely end up with a stronger patent in the long run.

While we do not prepare or prosecute patent applications (we focus solely on litigation) there are numerous qualified patent attorneys who can help you. If you need a referral, please feel free to contact us .

What is a "poor man's patent," and is it real? 
There has been a persistent rumor for years about a “poor man’s patent.” The rumor states that an inventor can mail a description of his or her invention to him or herself via certified mail, and that this somehow gives the inventor patent rights.

This is simply not true. The only way to truly protect an invention is to file a patent application with the USPTO.

What type of patent is right for me?
There are three primary types of patents: utility patents, design patents and plant patents.

When people think of “patent”, they are typically thinking of a utility patent. While these are the most complicated to file, they provide the most protection to the inventor.

“Design” patents are less expensive to file, but they only protect the aesthetic design of your invention. Yes, they are simpler and cheaper to file – but they are narrower in the protection they provide. If you only want to protect the aesthetic design of your invention, then a design patent may be right for you. If you want to protect more, then you should think about filing a utility patent application.

Plant patents offer very specific protection to those who have created and reproduced very specific kinds of plants.

Are TV commercials from invention submission companies for real?
Remember the old adage, “If it sounds too good to be true, it probably is.” We recommend that you proceed very cautiously with invention submission companies.

During the 1990s, some invention submission companies took advantage of inventors. These predatory business practices lead Congress to pass the American Inventor Protection Act (AIPA). The AIPA requires companies to disclose, among other things, their success rates.

If you are using an invention submission company, make sure you receive and review these success rates. While some of these companies may be legitimate, quite often their success rates are below 1%.

There are three potential problems with less than candid invention submission companies: 

First, they will inform you that you have invented the greatest invention in the history of the world, and with them, you will make millions. Unfortunately, this is most likely not true. These companies recognize how excited you are about your invention, and will prey on that. Remember: most people who work with invention submission companies lose money.

Second, they reel you in with low up-front fees, only to ask for ever-increasing fees during the relationship. These continually increasing fees often are not initially disclosed, and therefore can come as a very unpleasant surprise.

Third, some invention submission companies prefer to prepare design patents rather than utility patents. These patents are not as powerful or useful and may not provide the protection you need or deserve. These patents are much easier to design around, especially if they are prepared quickly. A utility patent is much broader, and if prepared properly can protect your entire invention. Be sure that if an invention submission company wants to prepare a design patent for you, that it will fully protect your invention.  

 Why have patents have been in the news lately?
Our economy is driven by technology. It takes a lot of time and money to create an invention, and even more to protect it with a patent. What’s more, patent cases are generally highly complex and long drawn-out affairs. What's more, they often involve large sums of money. Big numbers always make headlines.

What do I do if I believe someone is infringing on my patent?
The first step is to hire a patent litigation firm that you feel can handle your case. It’s best to choose attorneys who have experience with your type of case. You should also note the size of the firm you are hiring. A firm that is too small might not have the resources to handle the huge volume of paperwork normally associated with patent cases.

If you have questions not covered here, or if you would like to discuss a possible case or referral with our in-house patent litigation team members, please contact us.