15 Common Patent Questions Every Innovator Asks

Patents can be complex, and the right approach often depends on specific facts and circumstances. Below are generalized answers to common questions inventors and businesses ask about patents. These insights are for informational purposes only and do not replace professional advice.

1) Do I need a patent for my invention or is a trademark enough?

Patents and trademarks serve different purposes: patents protect functional aspects of an invention, while trademarks protect brand identifiers like names and logos. Almost every new business benefits from having a registered trademark. Whether a patent strategy is also appropriate depends on the nature of the product and business objectives. Specific circumstances can impact this decision.

2) What’s the difference between a provisional and a non‑provisional patent application?

A provisional application secures an early filing date and expires after 12 months without examination. A non‑provisional application is the formal filing that undergoes review and can lead to an issued patent. The choice between them often relates to timing, disclosure plans, and development stage, which vary by case.

3) Can software or an AI‑based solution be patented in the U.S.?

Yes. Software and AI‑related inventions can be patentable if they meet requirements for novelty, non‑obviousness, and utility. The biggest hurdle is often patent eligibility, which focuses on whether the invention is more than an abstract idea. Engaging a patent attorney experienced with software and AI—such as Lynch LLP—can help navigate eligibility and claim strategy.

4) How long does a U.S. patent last and what does it actually protect?

Utility patents generally last 20 years from the earliest filing date, subject to maintenance fees, and cover functional aspects of an invention. Design patents last 15 years from issuance and protect ornamental appearance. Actual coverage depends on claim scope and filing details, which vary by situation.

5) When should a startup file a provisional patent—before or after fundraising?

Timing often relates to disclosure, investor presentations, and business strategy. Provisional applications can be advantageous when funds are limited and in situations where funding may become available during the year the provisional application is pending. Individual circumstances influence the approach.

6) What is prior art and why can it affect my patent application?

Prior art includes publicly available information—such as patents, publications, or products—that predates a filing. The USPTO can reject a pending patent’s claims in view of prior art. This response is generalized; whether something qualifies as prior art can involve nuanced analysis of timing and content.

7) Is an NDA enough to protect my invention before filing a patent?

An NDA can help maintain confidentiality, but it does not create patent rights. Having an NDA before disclosing an invention to a third party is one way to protect it, and filing a patent before such disclosure is another. Using both in tandem generally provides stronger protection. Effectiveness depends on specific facts and agreements.

8) Do I need a working prototype before filing a patent?

No. U.S. practice recognizes constructive reduction to practice, where the application describes the invention in sufficient detail for someone skilled in the field to make and use it. Actual reduction to practice—building a prototype—can be helpful but is not required for filing. Relevance varies by context.

9) What happens if I publicly demo my product before filing a patent?

In the U.S., a one‑year grace period applies after public disclosure. In many other countries, public disclosure before filing can eliminate eligibility due to absolute novelty rules. Disclosure before filing is generally inadvisable because—even with the U.S. grace period—it can create challenges during patent prosecution. Outcomes vary by jurisdiction and timing.

10) Can I patent improvements to an existing product or technology?

Most inventions are improvements to some state of the art. Improvements can be patentable if they meet criteria for novelty, non‑obviousness, and utility. Whether filing makes sense depends on the nature of the improvement and business goals; individual evaluations can clarify potential scope and value.

11) How do international patents work—do I need to file in every country?

There is no global patent system. Protection is obtained by filing in individual countries or regions. Pursuing international patent protection typically involves an experienced patent attorney who understands both the PCT process and direct filings in various jurisdictions.

12) What is the PCT and how does it help with global patent filings?

A PCT application gives a patent filer up to 30 months from the earliest filing date to decide whether and where to pursue international patent rights. It also allows certain patent prosecution activities during the international phase, which can save time and cost after national phase entry. For more information, consultation with an attorney at Lynch LLP is available.

13) Can I patent something that uses open‑source components?

Patents can cover inventions that incorporate open‑source elements if the overall invention is novel and non‑obvious. License terms may affect patent ownership and enforcement, and in some cases ownership itself. Reviewing license obligations and seeking guidance when using open‑source tools can help avoid conflicts.

14) What’s the difference between a design patent and a utility patent?

A utility patent protects functional aspects of an invention, such as how it works. A design patent protects ornamental appearance—like shape or surface decoration—and cannot protect functional elements. Applicability depends on a product’s features and goals.

15) Can I patent a business method or a software process?

Business methods and software processes may be patentable if they demonstrate a technical improvement or practical application. Abstract ideas without a specific technical implementation generally do not qualify under U.S. law. This is a highly generalized overview of a complex area; further detail may require review by an experienced patent attorney.