What is a patent? A United States Patent is actually a “grant of rights” for a limited period. In layman’s terms, it is acontract where the United States Of America government expressly permits a person or company to monopolize a certain concept for a limited time. Typically, our government frowns upon any kind of monopolization in commerce, due to the belief that monopolization hinders free trade and competition, degrading our economy. A good example is the forced break-up of Bell Telephone some years ago into the many regional phone companies. The federal government, in particular the Justice Department (the governmental agency which prosecutes monopoly or “antitrust” violations), thought that Bell Telephone was an unfair monopoly and forced it to relinquish its monopoly powers over the telephone industry.
Why, then, would the federal government permit a monopoly by means of a patent? The federal government makes an exception to encourage inventors to come forward with their creations. By doing this, the government actually promotes advancements in technology and science.
To start with, it ought to be clear for you just just how a patent acts as a “monopoly. “A patent permits the owner in the Inventions to avoid other people from producing the merchandise or utilizing the process covered by the patent. Think about Thomas Edison and his most popular patented invention, the light bulb. Together with his patent for your light bulb, Thomas Edison could prevent every other person or company from producing, using or selling light bulbs without his permission. Essentially, no person could contend with him within the light bulb business, and hence he possessed a monopoly.
However, in order to receive his monopoly, Thomas Edison were required to give something in turn. He required to fully “disclose” his invention to the public. To obtain a United States Patent, an inventor must fully disclose what the invention is, how it operates, and the easiest way known from the inventor to really make it.It really is this disclosure for the public which entitles the inventor to some monopoly.The logic for accomplishing this is that by promising inventors a monopoly in return for their disclosures for the public, inventors will continually make an effort to develop technologies and disclose them to the public. Providing them with the monopoly allows them to profit financially from your invention. Without it “tradeoff,” there would be few incentives to produce new technologies, because without a patent monopoly an inventor’s hard work will bring him no financial reward.Fearing that the invention could be stolen whenever they attempt to commercialize it, the inventor might never tell a soul with regards to their invention, and also the public would never benefit.
The grant of rights within patent will last for a restricted period.Utility patents expire two decades once they are filed.If this had not been the case, and patent monopolies lasted indefinitely, there could be serious consequences. For example, if Thomas Edison still held an in-force patent for the light bulb, we might probably have to pay about $300 to get a light bulb today.Without competition, there will be little incentive for Edison to boost upon his light bulb.Instead, after the Edison light bulb patent expired, everyone was free to manufacture light bulbs, and several companies did.The vigorous competition to do just that after expiration of the New Invention led to better quality, lower costing light bulbs.
II. Varieties of patents
You will find essentially three types of patents which you ought to know of — utility patents, design patents, and provisional patent applications. A utility patent pertains to inventions which have a “functional” aspect (quite simply, the invention accomplishes a utilitarian result — it genuinely “does” something).In other words, the thing which is different or “special” concerning the invention should be for any functional purpose.To be eligible for utility patent protection, an invention must also fall within a minumum of one from the following “statutory categories” as required under 35 USC 101. Stay in mind that just about any physical, functional invention will fall into at least one of those categories, so that you will not need to be concerned with which category best describes your invention.
A) Machine: imagine a “machine” as something which accomplishes a job because of the interaction of its physical parts, like a can opener, an automobile engine, a fax machine, etc.It is the combination and interconnection of such physical parts that our company is concerned and that are protected from the patent.
B) Article of manufacture: “articles of manufacture” ought to be thought of as things that accomplish an activity just like a piece of equipment, but without the interaction of various physical parts.While articles of manufacture and machines may are most often similar in many cases, you can distinguish the 2 by thinking about articles of manufacture as more simplistic things which normally have no moving parts. A paper clip, as an example is definitely an article of manufacture.It accomplishes a task (holding papers together), but is clearly not a “machine” as it is an easy device which fails to rely on the interaction of numerous parts.
C) Process: a means of doing something through a number of steps, each step interacting somehow with a physical element, is actually a “process.” An activity can be considered a new way of manufacturing a known product or can even be a new use to get a known product. Board games are typically protected as being a process.
D) Composition of matter: typically chemical compositions like pharmaceuticals, mixtures, or compounds like soap, concrete, paint, plastic, and the like can be patented as “compositions of matter.” Food items and recipes tend to be protected in this manner.
A design patent protects the “ornamental appearance” of the object, as opposed to its “utility” or function, that is protected with a utility patent. In other words, if the invention is a useful object which has a novel shape or overall appearance, a design patent might give you the appropriate protection. To avoid infringement, a copier would have to create a version that will not look “substantially like the ordinary observer.”They cannot copy the shape and overall appearance without infringing the style patent.
A provisional patent application is a step toward obtaining a utility patent, where the invention might not anticipate to obtain a utility patent. Put simply, when it seems like the invention cannot yet obtain a utility patent, the provisional application may be filed within the Patent Office to establish the inventor’s priority to the invention.As the inventor continues to develop the invention making further developments which permit a utility patent to become obtained, then this inventor can “convert” the provisional application to some full utility application. This later application is “given credit” for the date when the provisional application was initially filed.
A provisional patent has several benefits:
A) Patent Pending Status: The most well-known benefit of a Provisional Patent Application is it allows the inventor to right away begin marking the product “patent pending.” This has a time-proven tremendous commercial value, similar to the “as seen on TV” label which is put on many products. A product or service bearing these two phrases clearly possesses an industrial marketing advantage right from the start.
B) Capability to improve the invention: After filing the provisional application, the inventor has twelve months to “convert” the provisional right into a “full blown” utility application.During that year, the inventor need to commercialize the item and assess its potential. If the product appears commercially viable during that year, then this inventor is asked to convert the provisional application into a utility application.However, unlike a typical utility application which can not be changed in any respect, a provisional application may have additional material included in it to boost it upon its conversion within twelve months.Accordingly, any helpful tips or tips that were obtained by the inventor or his marketing/advertising agents during commercialization from the product can be implemented and guarded during those times.
C) Establishment of any filing date: The provisional patent application offers the inventor having a crucial “filing date.” Put simply, the date the provisional is filed becomes the invention’s filing date, even for the later filed/converted utility patent.
III. Requirements for obtaining a utility patent. When you are sure that your invention is actually a potential candidate for any utility patent (as it fits within one of many statutory classes), you ought to then move ahead to assess whether your invention can satisfy two key requirements — “novelty” and “unobviousness.” These two requirements are essentially worried about whether your invention is totally new, and if so, whether you will find a substantial difference between it and similar products within the related field.
A) Novelty: To acquire a utility patent, you have to initially determine whether your invention is “novel”. Put simply, is your invention new?Have you been the very first person to get looked at it? For instance, should you obtain a patent on the light bulb, it seems like quite clear that you would not eligible for a patent, because the light bulb will not be a whole new invention. The Patent Office, after receiving your application, would reject it based upon the reality that Edison invented the light bulb a long time ago. In rejecting your patent application, the Patent Office would actually cite the Edison light bulb patent against you as relevant “prior art” (prior art is everything “known” before your conception from the invention or everything known to people more than one year before you file a patent application for that invention).
To your invention to get novel with respect to other inventions on earth (prior art), it must just be different in a few minimal way. Any trivial physical difference will suffice to render your invention novel more than a similar invention.If you decide to invent a square light bulb, your invention would actually be novel when compared to Edison light bulb (since his was round/elliptical). In the event the patent office would cite the round Edison light bulb against your square one as prior art to show that your invention had not been novel, they could be incorrect. However, if there exists an invention that is identical to yours in every way your invention lacks novelty and is not patentable.
Typically, the novelty requirement is extremely simple to overcome, since any slight variation in shape, size, blend of elements, etc. will satisfy it. However, even though the invention is novel, it might fail another requirement mentioned previously: “non-obviousness.” So, if you find that your invention overcomes the novelty requirement, do not celebrate yet — it is actually more difficult to fulfill the non-obviousness requirement.
B) Non-obviousness: As pointed out above, the novelty requirement is the easy obstacle to get over inside the pursuit of Find A Patent Attorney. Indeed, if novelty were the only real requirement in order to satisfy, then just about anything conceivable might be patented as long as it differed slightly from all previously developed conceptions. Accordingly, a far more difficult, complex requirement should be satisfied following the novelty question is met. This second requirement is called “non-obviousness.”
The non-obviousness requirement states partly that although an invention as well as the related prior art might not be “identical” (which means the invention is novel with regards to the prior art), the invention may nevertheless be unpatentable if the differences between it and also the related prior art could be considered “obvious” to someone having ordinary skill in the area of the particular invention.
This is in actuality the Patent and Trademark Office’s way of subjectively judging the “quality” of an invention. Clearly the PTO has no latitude in judging whether your invention is novel or not — it really is typically quite evident whether any differences exist between your invention as well as the prior art.On this point there is not any room for subjective opinion. Regarding non-obviousness, however, there is a reasonably bit of room for many different opinions, since the requirement is inherently subjective: each person, including different Examiners on the Patent Office, may have different opinions regarding whether or not the invention is truly obvious.
Some common types of things which usually are not usually considered significant, and so which are usually considered “obvious” include: the mere substitution of materials to create something much lighter; changing the size or color; combining items of what type commonly found together; substituting one well-known component for an additional similar component, etc.
IV. What exactly is considered prior art through the Patent Office?
The patent laws, specifically 35 U.S.C. section 102, outline eight major types of prior art which can be utilized to keep you from obtaining a patent. Put simply, it defines exactly those ideas that the PTO can cite against you in an effort to prove that your particular invention will not be in fact novel or even to show that your particular invention is obvious. These eight sections can be broken down into an organized and understandable format consisting of two main categories: prior art which is dated before your date of “invention” (thus showing that you will be not the very first inventor); and prior art which dates back just before your “filing date” (thus showing that you simply might have waited too long to file to get a patent).
A) Prior art which dates back before your date of invention: It might appear to seem sensible that in case prior art exists which dates before your date of invention, you must not be entitled to acquire a patent on that invention because you would not truly function as the first inventor. Section 102(a) from the patent law specifically describes the points which can be utilized as prior art if they occur before your date of invention:
1) Public knowledge in the usa: Any evidence that the invention was “known” by others, in the usa, prior to your date of invention. Even when there is no patent or written documentation showing that your particular invention was known in the usa, the PTO may still reject your patent application under section 102(a) as lacking novelty if they can show that your invention was generally recognized to the public prior to your date of invention.
2) Public use in the usa: Use by others from the invention you are trying to patent in public areas in the United States, just before your date of invention, can be held against your patent application by the PTO. This should make clear sense, since if someone else was publicly making use of the invention before you even conceived from it, you obviously should not be the initial and first inventor from it, and you may not need to receive a patent for it.
3) Patented in america or abroad: Any U . S . or foreign patents which issued prior to your date of invention and which disclose your invention will likely be used against your patent application from the PTO. As an example, think that you invent a lobster de-shelling tool on June 1, 2007.The PTO can use any patents which disclose an identical lobster de-shelling tool, United States Of America or foreign, which issued before June 1, 2007 (your date of invention) against your patent application.
4) Published publicly in United States or abroad: Any U . S . or foreignprinted publications (such as books, newspapers, magazines, trade journals, etc.) which disclose your invention and were published just before your date of invention will keep you from acquiring a patent.Again, the reasoning here is when your conception was described publicly in a printed publication, then you usually are not the first inventor (since somebody else considered it before you) and you are not entitled to patent onto it.
B)Prior art which dates back just before your filing date: As noted above, prior art was described as everything known before your conception from the invention or everything proven to the general public more than one year before your filing of the patent application. This means that in many circumstances, even even though you were the first to have conceived/invented something, you will be unable to get a patent on it if it has entered the world of public knowledge and more than one year has gone by between that point as well as your filing of any patent application. The goal of this rule is to persuade folks to apply for patents on their own inventions at the earliest opportunity or risk losing them forever. Section 102(b) from the patent law defines specifically those varieties of prior art which can be utilized against you as a “one-year bar” the following:
1) Commercial activity in the usa: In the event the invention you want to patent was sold or offered for sale in the United States more than one year before you file a patent application, then you certainly are “barred” from ever getting a patent on the invention.
EXAMPLE: you conceive of your invention on January 1, 2008, and provide it for sale on January 3, 2008, in an effort to raise some funds to get a patent. You have to file your patent application no later than January 3, 2009 (twelve months through the day you offered it available for sale).If you file your patent application on January 4, 2009, as an example, the PTO will reject your application as being barred because it was offered available for sale multiple year before your filing date.This also is the case if somebody apart from yourself begins selling your invention. Assume still which you conceived your invention on January 1, 2008, but failed to sell or offer it available for sale publicly.You just kept it to yourself.Also assume that on February 1, 2008, another person conceived of your own invention and began selling it. This starts your one year clock running!Unless you file a patent on your invention by February 2, 2009, (one year from your date one other person began selling it) then you also will be forever barred from getting a patent. Note that the provision in the law prevents you against obtaining a patent, even though there is no prior art dating back to before your date of conception and you really are the very first inventor (thus satisfying 102(a)), for the reason that the invention was accessible to the general public for over 1 year before your filing date due to the other person’s sale.Accordingly, “section 102(b) one-year bars” can ruin your odds of getting a patent even though you happen to be first inventor and also have satisfied section 102(a).
2) Public use in america: If the invention you wish to patent was applied in the usa by you or some other several year before your filing of a patent application, then you certainly are “barred” from ever getting a patent on your own invention. Typical samples of public use are whenever you or someone else display and make use of the invention with a trade show or public gathering, on television, or anywhere else in which the general public has potential access.The public use do not need to be one which specifically intends to have the public conscious of the invention. Any use which can be potentially accessed by the public will suffice to begin with usually the one year clock running (but a secret use will most likely not invoke the one-year rule).
3) Printed publication in the United States or abroad: Any newspaper article, magazine article, trade paper, academic thesis or other printed publication by you or by another individual, accessible to the general public in the usa or abroad several year before your filing date, will stop you from acquiring a patent on your invention.Note that even an article authored by you, regarding your own invention, will start the one-year clock running.So, for example, in the event you detailed your invention in a press ndefzr and mailed it out, this might start the main one-year clock running.So too would the main one-year clock start running for you when a complete stranger published a printed article about the topic of your invention.
4) Patented in the usa or abroad: If a U . S . or foreign patent covering your invention issued spanning a year just before your filing date, you may be barred from acquiring a patent. Compare this with the previous section regarding United States and foreign patents which states that, under 102(a) in the patent law, you are prohibited from obtaining a patent when the filing date of some other patent is earlier than your date of invention. Under 102(b) which we are discussing here, you are unable to get a patent upon an invention which was disclosed in another patent issued over last year, even should your date of invention was before the filing date of this patent.