To the original poster:
First, let me start this off by stating that I'm not a lawyer (yet). I just recently sat for the bar exam in one state and will be sitting for another bar exam in a second state in a few months. However, I am a patent agent and I do have a law degree. In law school, I took a lot of intellectual property courses (just about every single one they offered). So, none of what I say below will be legal advice, except to the extent that I am licensed -- i.e., as a patent agent.
Yes, you can protect your invention with a patent. There are design patents and there are structural (mechanical) patents. With design patents, your claim consists of what you have illustrated in your drawings (that are within your patent application). With a mechanical patent, you have claims consisting of a textual description of how your invention is physically constructed.
Mechanical patents are a type of utility patent. But, a design patent is an ornamental patent. Therefore, you can actually have protection for both. However, for a design patent, the design you wish to protect must be something which is ornamental in nature -- i.e., the shape / structure of what you have invented must not have been primarily dictated by functional considerations.
Getting a patent is a very slow process. It can take anywhere from 3+ years to get a patent granted.
As far as a patent search is concerned, you can: 1) retain a patent agent; 2) retain a patent attorney; or, 3) retain a patent search service to see if your invention is patentable. Initially, though, you can, right away, file for a provisional patent application. Should your invention prove to be patentable (at least based on the patent search), then you can file a continuation application referencing that provisional patent application.
Be sure that you understand the fees involved in obtaining a patent. It's on the order of several thousand dollars. You can go to the USPTO website, <
http://www.uspto.gov> to look up the fees for patent filing.
You have to realize that: patent protection does not attach until 3 or 5 years later (after the initial filing) -- sometimes, even more time elapses (especially with biotech patents).
Also, by default, the US Patent & Trademark Office does publish your patent application, fully disclosing your invention to the public after an 18-month waiting period from your initial filing of a regular patent application. Though, from what I've read in Professor Kayton's _Patent Practice_ treatise, you are able to prevent the publication of your patent application if you tell the USPTO that you will not be filing for any international patent protection. The 18-month waiting period is, I think, so that the US complies with the Patent Cooperation Treaty (PCT) for those filing for US patent protection that subsequently wish to file a PCT application to file for patent protection in countries other than the US.
There are other ways to protect your patent in the meantime, prior to obtaining patent protection. The law of trade secrets; some states recognize the protection of ideas (requiring novelty, concreteness, and utility), etc. I would highly suggest that you talk to an IP attorney as far as alternate means of protection in the interim.
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Differences between a patent agent and patent attorney:
1) Patent agents generally hold at least a bachelor of science degree in a science or engineering field. They have also taken and passed the US Patent & Trademark patent bar exam and they have a registration certificate which licenses them to practice before the USPTO in patent matters. (I am one.)
2) Patent attorneys have gone through all of the things that patent agents have, and also generally hold a J.D. in law and have passed the state bar exam in their state.
Patent agents can do everything that patent attorneys can do inside the USPTO. However, patent agents cannot sue for infringement in federal court, for instance. Patent attorneys can.
Patent agents, from what I understand, are cheaper than patent attorneys.
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In terms of marketing your product right away:
I don't know if you'd be asking companies if they have interest in your product or what your approach would be.
Anyway, with a patent, you will have retroactive patent protection once your patent is issued -- i.e., retroactive to the initial filing date of your provisional patent application. However, like I said, the patent won't issue until 3 or more years after your provisional filing.
Is filing a patent really worth it? The last time I looked, it took just $5,000 alone in fees (I looked at the USPTO website) in order to file for a patent. This doesn't include the money you pay someone to do patent searching, asking another person to draw up a patent application and file it for you, etc.
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This is not legal advice, but since I did take a copyright law class and was an RA...this did pop into my mind:
Getting copyright registration for your wheel cover design is relatively cheap. It also protects you from any subsequent infringer (preserves your right to sue for copyright infringement). The Copyright Act of 1976 (the current copyright law in force today) protects a variety of works, including pictorial, graphic, and sculptural works. Getting a copyright registration is relatively straightfoward; the Copyright Office essentially rubber stamps all copyright registration requests. But, the design must not be dictated by function; it must be an original design not dictated by utilitarian considerations. This thought occurred to me after looking at this web page (which you might want to look at): <
www.kenyon.com/pdf/26225.pdf>
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Also, there is the federal law of trade secrets (specifically, trade dress) -- (Two Pesos, Inc. v. Taco Cabana, Inc., 505 US 763 (1992)), state law of ideas (e.g., Lueddecke v. Chevrolet Motor Co., 70 F.2d 345 (8th Cir., 1934), etc. (state law protecting ideas -- some states recognize this; some states don't, at least that's what my IP professor would say). In other words, there are other avenues of protection, at least in theory, that are available to you now as opposed to waiting for the issuance of a patent. These laws might protect you until the patent eventually issues.
However, you might want to think about whether your invention will be marketable by the time the patent issues -- it may or may not be worth the wait.
Good luck.
