Patent a Process in the US: A Complete Guide

If you’re an entity in the service industry, you might have thought, “Is it possible to patent a process?” The simple answer is yes. But, the bigger question is, how can you do it?

A process patent is a form of a utility patent. It serves the purpose of protecting methods of changing the functionality or characteristics of a material for a particular use.

You can patent a process, which can be a business method or even computer software. These processes include targeted advertising networks, email systems, subscription-based services, etc. The USPTO has certain guidelines that you need to meet in order to get the patent grant.

Let’s dive deeper into the entire procedure to patent a process.

Patentability Subject Matter

Before we begin, let’s quickly understand the subject matter eligibility set out by the USPTO. It is a set of guidelines that clearly outline what is patentable in the USA. It is clear that the invention needs to be novel, non-obvious and industrially applicable. However, it also needs to meet the patentability criteria as well.

You can get a patent for:

Machine

The US Supreme Court has a definition for the term “machine”. It says that a machine is “a concrete thing, consisting of parts, or of certain devices and combination of devices.”  The parts MUST interact with one another otherwise one might consider them to be articles of manufacture

Article of Manufacture

An article of manufacture has a specific definition. It involves the production of articles of use from raw or prepared materials. This is done by giving to these materials new forms, qualities, properties, or combinations. One may do so by hand-labor or by machinery.

Process

A process usually refers to a series of steps in manufacture. It can also mean a method to use a product to accomplish a result. However, the method must be a method of purpose to be eligible for a patent.

Composition of matter

Composition of matter means “all compositions of two or more substances and all composite articles. They may be the results of chemical union, or of mechanical mixture, or gases, fluids, powders or solids.”

Any useful improvisation to any of the above

The US Patent Law allows one to improve on existing technology. However, It should serve the purpose of genuinely improving the current technology by reducing the time, or improving efficiency, etc.

As we can see, the USPTO allows you to patent a process. The validity of the patent is 20 years. With the evolution of IP, the laws have gone through the evolution of it.

In the modern world, IP doesn’t limit to just to machines or other physical inventions. Let’s see what types of processes are eligible for a patent.

Patent a Process: Which Process can get a Patent?

The US Patent Act has strict rules and classifications of business methods that can get a patent. Hence, not every process is eligible for it. You need to check the classes and file under the relevant class.

For example, the most common class for business methods is class 705. It encompasses computer processes involving business practices, price determination, financing, etc. There are other classifications as well for different models. These involve gaming (class 273), agriculture (class 47), and education (class 434). Once you are sure of your class, you can move on to the filing process for your patent.

Drafting and Filing Procedure

Before anything else, you must first conduct a patent search to check for any prior art. If no prior art exists, you can go ahead with the drafting and filing procedure.

You need to treat a process patent just like a utility patent. Hence, when you write the patent, the patent draft needs to follow the guidelines of a utility patent only. The application needs to have comprehensive and all-encompassing claims, specifications, descriptions, patent drawings, etc.

The claims need to be precise and detailed to ensure that the process is safe from potential infringements. When you patent a process, the patent drawings also play a crucial role. They need to comprise of elaborate flowcharts describing the entire process thoroughly. But they must follow the USPTO guidelines.

Also, check out the complete guide for software patent drafting.

Once your draft is ready, make sure to proofread it. The Information Disclosure Statement (IDS) needs to be up-to-date and very meticulous.

The patent filing process is also a direct procedure. You can either file your application online at the EFS-Web or send it via post to the USPTO. Once the USPTO receives the application, it will publish it.

After the publication, you will have to go through a patent examination. The examiner will study your application and send objections in the form of office actions. The objections will pertain to technical and non-technical issues with the application. You will have to clear these objections in order to patent a process.

Patent a process: Netflix Example

We all know about Netflix and its stronghold in the entertainment industry. It is an online-based provider of subscription services. Netflix got a patent grant in 2003 for its computer-implemented system for renting TV shows and movies. Their flow chart explains the process very clearly and elaborately.

Patent No.: US6584450B1

https://thepatentwatchcompany.com/wp-content/uploads/2019/09/Fig.-Flowchart-of-Netflix’s-Process-Patent.png

Fig. Flowchart of Netflix’s Process Patent

Blockbuster, a competitor of Netflix also launched a similar service. Netflix took legal action against them in the form of a patent infringement suit. The case was settled later and Netflix received a lot of money because of their patent.

Problems to Overcome

Despite the existing guidelines, when you want to patent a process, there are still some issues that the USPTO needs to address. There are certain ambiguities, uncertainties, and issues that persist. These create hindrance in the entire patent process. Let’s have a look at them.

Ambiguity in Terminology

The US Patent Act lists words like “useful” and “result” in the patent law, which creates an air of ambiguity. Since we are talking about “utility”, the inclusion of “useful” might refer to something else. It might also simply reaffirm the existing language. Nonetheless, it creates confusion.

Similarly, the term “result” might render the process itself meaningless. This is because a process patent mainly focuses on the process and not the result that comes from it.

Problem of Disclosure

The patent system requires full disclosure of the invention that requires the patent. The disclosure should be so elaborate that any person skilled in the domain should be able to replicate it. This is where inventors hesitate and there needs to be enough awareness about the disclosure and its impact.

Software patents

Unlike other fields, we don’t have comprehensive sources of prior art to compare an invention with. Another issue is determining if the business method is intrinsically linked to computer technology. The business method needs to be novel, useful and must have an inseparable use with computer technology. Determining the grant of the patent on these grounds is often subjective and needs more attention.

Conclusively, there are issues that the USPTO needs to work on. However, if you want to patent a process, then you should not hesitate because of these factors.

How can we help you? – The Patent Watch Company

When you patent a process, you must also ensure that nobody infringes on your rights. Infringements can occur at any time and anywhere. The enforcement of your IP rights is your responsibility, so you must keep a vigilant eye on the market and your competitors. If you need the assistance of a professional, consider The Patent Watch Company. We cover numerous technology areas and have years of experience under our belt in the monitoring domain. Our monitoring focuses on patent/non-patent literature (by patent/patent publication numbers) as well as general marketing activities like product launches, investments, etc. We also assure timely delivery and value for money in our services.

To make an inquiry, reach out to us on The Patent Watch Company.

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