What is a patent? A United States Patent is basically a “grant of rights” for a limited period. In layman’s terms, it is acontract in which the United States Of America government expressly permits a person or company to monopolize a particular concept for a very limited time. Typically, our government frowns upon any sort of monopolization in commerce, as a result of belief that monopolization hinders free trade and competition, degrading our economy. An excellent example is the forced break-up of Bell Telephone some years ago into the many regional phone companies. The 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 government permit a monopoly as a patent? The federal government makes an exception to encourage inventors to come forward making use of their creations. In doing so, the federal government actually promotes advancements in science and technology.
First of all, it ought to be clear for you just how a patent acts as a “monopoly. “A patent permits the property owner in the Can I Patent An Idea to avoid someone else from producing the merchandise or utilizing the process covered by the patent. Consider Thomas Edison and his awesome most popular patented invention, the light bulb. With his patent for the light bulb, Thomas Edison could prevent some other person or company from producing, using or selling light bulbs without his permission. Essentially, no person could compete with him inside the light bulb business, and hence he possessed a monopoly.
However, in order to get his monopoly, Thomas Edison were required to give something in return. He necessary to fully “disclose” his invention for the public. To have a U . S . Patent, an inventor must fully disclose what the invention is, the way it operates, and the most effective way known through the inventor making it.It really is this disclosure to the public which entitles the inventor to some monopoly.The logic for doing this is the fact by promising inventors a monopoly in return for disclosures towards the public, inventors will continually make an effort to develop technologies and disclose those to the general public. Providing these with the monopoly allows them to profit financially from the invention. Without it “tradeoff,” there would be few incentives to produce technologies, because without having a patent monopoly an inventor’s hard work would bring him no financial reward.Fearing that their invention will be stolen once they make an effort 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 a patent can last for a limited period.Utility patents expire twenty years when they are filed.If this type of was not the case, and patent monopolies lasted indefinitely, there could be serious consequences. For example, if Thomas Edison still held an in-force patent for that light bulb, we would probably must pay about $300 to get a light bulb today.Without competition, there would be little incentive for Edison to improve upon his light bulb.Instead, when 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 Inventors Help led to higher quality, lower costing light bulbs.
II. Kinds 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 applies to inventions which have a “functional” aspect (put simply, the invention accomplishes a utilitarian result — it genuinely “does” something).Quite simply, the one thing which can be different or “special” concerning the invention should be to get a functional purpose.To be eligible for utility patent protection, an invention must also fall within at least one from the following “statutory categories” as required under 35 USC 101. Keep in mind that just about any physical, functional invention will fall into one or more of these categories, so you need not be worried about which category best describes your invention.
A) Machine: think of a “machine” as something which accomplishes a task because of the interaction of their physical parts, like a can opener, an automobile engine, a fax machine, etc.It will be the combination and interconnection of such physical parts that our company is concerned and which are protected from the patent.
B) Article of manufacture: “articles of manufacture” ought to be looked at as things which accomplish a task just like a unit, but with no interaction of numerous physical parts.While articles of manufacture and machines may appear to be similar in many instances, you can distinguish the 2 by thinking about articles of manufacture as more simplistic items that normally have no moving parts. A paper clip, for instance is surely an article of manufacture.It accomplishes an activity (holding papers together), but is clearly not a “machine” since it is a simple device which does not rely on the interaction of numerous parts.
C) Process: a means of accomplishing something through several steps, each step interacting in some manner having a physical element, is known as a “process.” A process can become a new approach to manufacturing a known product or can even be considered a new use for a known product. Board games are typically protected as a process.
D) Composition of matter: typically chemical compositions such as pharmaceuticals, mixtures, or compounds including soap, concrete, paint, plastic, as well as the like can be patented as “compositions of matter.” Food items and recipes tend to be protected in this fashion.
A design patent protects the “ornamental appearance” of your object, rather than its “utility” or function, which is protected by way of a utility patent. Put simply, in the event the invention is actually a useful object which has a novel shape or overall look, a design patent might give you the appropriate protection. To prevent infringement, a copier would have to create a version that fails to look “substantially like the ordinary observer.”They cannot copy the design and overall appearance without infringing the design patent.
A provisional patent application is actually a step toward getting a utility patent, in which the invention might not even anticipate to get a utility patent. Put simply, when it seems like the invention cannot yet get a utility patent, the provisional application may be filed in the Patent Office to determine the inventor’s priority towards the invention.As the inventor consistently develop the invention to make further developments that allow a utility patent to become obtained, then your 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 advantages:
A) Patent Pending Status: The most well-known benefit of a Provisional Patent Application is that it allows the inventor to instantly begin marking the merchandise “patent pending.” It has an occasion-proven tremendous commercial value, like the “as seen on TV” label that is applied to many products. A product or service bearing both of these phrases clearly possesses a commercial marketing advantage right from the beginning.
B) Ability to increase the invention: After filing the provisional application, the inventor has 1 year to “convert” the provisional right into a “full blown” utility application.During that year, the inventor need to try to commercialize the product and assess its potential. If the product appears commercially viable during that year, then this inventor is motivated to convert the provisional application in to a utility application.However, unlike a typical utility application which can not be changed by any means, a provisional application may have additional material put into it to boost it upon its conversion within 1 year.Accordingly, any helpful tips or tips that had been obtained by the inventor or his marketing/advertising agents during commercialization from the product can be implemented and guarded during that time.
C) Establishment of any filing date: The provisional patent application also provides the inventor using a crucial “filing date.” Put simply, the date that 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. Once you are certain your invention is actually a potential candidate to get a utility patent (since it fits within among the statutory classes), you should then move ahead to analyze whether your invention can satisfy two key requirements — “novelty” and “unobviousness.” Those two requirements are essentially worried about whether your invention is completely new, and when so, whether you will find a substantial difference between it and other products in the related field.
A) Novelty: To acquire a utility patent, you need to initially see whether your invention is “novel”. In other words, can be your invention new?Are you currently the initial person to get thought of it? For example, if you decide to make application for a patent on the light bulb, it seems quite clear which you would not be eligible for a patent, because the light bulb is not really a new invention. The Patent Office, after receiving your application, would reject it based upon the fact 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” just before your conception of the invention or everything recognized to the general public multiple year before you file a patent application for that invention).
For the invention to get novel with respect to other inventions in the world (prior art), it should simply be different in a few minimal way. Any trivial physical difference will suffice to render your invention novel over a similar invention.If you decide to invent a square light bulb, your invention would really be novel compared to the Edison light bulb (since his was round/elliptical). When 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 might be incorrect. However, if there exists an invention which is identical to yours in every single way your invention lacks novelty and is not patentable.
Typically, the novelty requirement is extremely simple to overcome, since any slight variation fit, size, mixture of elements, etc. will satisfy it. However, even even though the invention is novel, it might fail the other requirement mentioned previously: “non-obviousness.” So, if you find that your invention overcomes the novelty requirement, tend not to celebrate yet — it is more difficult to meet the non-obviousness requirement.
B) Non-obviousness: As mentioned above, the novelty requirement is definitely the easy obstacle to overcome inside the search for New Invention. Indeed, if novelty were the only requirement to satisfy, then almost anything conceivable might be patented as long because it differed slightly coming from all previously developed conceptions. Accordingly, a far more difficult, complex requirement should be satisfied after the novelty question for you is met. This second requirement is referred to as “non-obviousness.”
The non-obviousness requirement states in part that although an invention and also the related prior art might not be “identical” (which means that the invention is novel with respect to the prior art), the invention may nevertheless be unpatentable when the differences between it and also the related prior art would be considered “obvious” to someone having ordinary skill in the area of the specific invention.
This really is in fact the Patent and Trademark Office’s method of subjectively judging the “quality” of your invention. Clearly the PTO has no latitude in judging whether your invention is novel or otherwise not — it is actually almost always quite evident whether any differences exist involving the invention and also 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 a number of opinions, since the requirement is inherently subjective: differing people, including different Examiners at the Patent Office, could have different opinions regarding whether or not the invention is truly obvious.
Some common samples of items that are certainly not usually considered significant, and so that are usually considered “obvious” include: the mere substitution of materials to help make something lighter in weight; changing the dimensions or color; combining items of the type commonly found together; substituting one well-known component for the next 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 kinds of prior art which can be used to stop you from obtaining a patent. Put simply, it defines exactly those activities which the PTO can cite against you in an effort to prove that your particular invention is not really actually novel or even to show that your invention is obvious. These eight sections can be broken down into an arranged and understandable format comprising two main categories: prior art which is dated before your date of “invention” (thus showing that you will be not the initial inventor); and prior art which dates back just before your “filing date” (thus showing which you might have waited too long to file to get a patent).
A) Prior art which dates back just before your date of invention: It might manage to make sense that if prior art exists which dates before your date of invention, you must not be entitled to acquire a patent on that invention as you would not truly be the first inventor. Section 102(a) of the patent law specifically describes the points which can be used as prior art should they occur before your date of invention:
1) Public knowledge in the usa: Any evidence that your invention was “known” by others, in the United States, just before your date of invention. Even when there is no patent or written documentation showing that your 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 the invention was generally proven to the public prior to your date of invention.
2) Public use in the usa: Use by others in the invention you are attempting 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 will make clear sense, since if a person else was publicly using the invention before you even conceived from it, you obviously can not be the original and first inventor of this, and you do not need to receive a patent because of it.
3) Patented in america or abroad: Any United States or foreign patents which issued prior to your date of invention and which disclose your invention will be used against your patent application by the PTO. For 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 Of America 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 prevent you from obtaining a patent.Again, the reasoning here is when your conception was described publicly in a printed publication, then you definitely are not the first inventor (since somebody else looked at it before you) and you also are certainly not entitled to patent onto it.
B)Prior art which dates back prior to your filing date: As noted above, prior art was defined as everything known before your conception in the invention or everything known to the public more than one year before your filing of the patent application. What this means is that in lots of circumstances, even although you were the first to have conceived/invented something, you will end up unable to acquire a patent on it when it has entered the arena of public knowledge and more than one year has gone by between that point as well as your filing of any patent application. The objective of this rule would be to persuade folks to apply for patents on their inventions as quickly as possible or risk losing them forever. Section 102(b) in the patent law defines specifically those kinds of prior art which can be used against you as a “one-year bar” the following:
1) Commercial activity in america: If the invention you intend to patent was sold or offered on the market in america more than one year before you file a patent application, then you are “barred” from ever acquiring a patent on the invention.
EXAMPLE: you conceive of your own invention on January 1, 2008, and provide it available for sale on January 3, 2008, so as to raise some funds to get a patent. You must file your patent application no later than January 3, 2009 (one year from the day you offered it on the market).In the event you file your patent application on January 4, 2009, for example, the PTO will reject your application as being barred as it was offered for sale several 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 did not sell or offer it available for sale publicly.You just kept it to yourself.Also believe that on February 1, 2008, someone else conceived of your own invention and began selling it. This starts your 1 year clock running!Unless you file a patent on the invention by February 2, 2009, (one year from the date another person began selling it) then you certainly also will be forever barred from obtaining a patent. Note that the provision of the law prevents you against acquiring a patent, even though there is not any prior art dating back to before your date of conception and you also are indeed the initial inventor (thus satisfying 102(a)), mainly because the invention was accessible to the public more than 1 year before your filing date as a result of another person’s sale.Accordingly, “section 102(b) one-year bars” can ruin your odds of acquiring a patent even though you happen to be first inventor and also have satisfied section 102(a).
2) Public use in the United States: If the invention you want to patent was applied in the usa by you or another multiple year before your filing of any patent application, then you certainly are “barred” from ever acquiring a patent on your invention. Typical samples of public use are when you or somebody else display and utilize the invention with a trade show or public gathering, on tv, or somewhere else in which the general public has potential access.The public use need not be one that specifically intends to have the public mindful of the invention. Any use which can be potentially accessed through the public will suffice to begin with the main one year clock running (but a secret use will most likely not invoke the one-year rule).
3) Printed publication in the usa or abroad: Any newspaper article, magazine article, trade paper, academic thesis or other printed publication on your part or by someone else, offered to the public in america or abroad several year before your filing date, will keep you from getting a patent on your own invention.Note that even a write-up published by you, regarding your own invention, will start the one-year clock running.So, for example, if you detailed your invention in a press ndefzr and mailed it out, this might start the one-year clock running.So too would the main one-year clock start running for you personally in case a complete stranger published a printed article about the subject of your invention.
4) Patented in america or abroad: If a United States or foreign patent covering your invention issued over a year prior to your filing date, you will be barred from acquiring a patent. Compare this with the previous section regarding United States Of America and foreign patents which states that, under 102(a) of the patent law, you happen to be prohibited from getting a patent in the event the filing date of some other patent is sooner than your date of invention. Under 102(b) which we are discussing here, you cannot obtain a patent upon an invention which had been disclosed in another patent issued over this past year, even if your date of invention was before the filing date of that patent.