What is a patent? A United States Of America Patent is actually 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 an individual or company to monopolize a particular concept for a limited time. Typically, our government frowns upon any type of monopolization in commerce, because of 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), considered that Bell Telephone was an unfair monopoly and forced it to relinquish its monopoly powers over the telephone industry.
Why, then, would the us government permit a monopoly by means of a patent? The 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.
First of all, it should be clear to you personally just just how a patent behaves as a “monopoly. “A patent permits the homeowner from the New Product Idea to stop other people from producing the product or making use of the process protected by the patent. Think about Thomas Edison along with his most well-known patented invention, the light bulb. Along with his patent for that light bulb, Thomas Edison could prevent some other person or company from producing, using or selling light bulbs without his permission. Essentially, nobody could compete with him in the light bulb business, so therefore he possessed a monopoly.
However, in order to obtain his monopoly, Thomas Edison were required to give something in return. He necessary to fully “disclose” his invention for the public. To acquire a U . S . Patent, an inventor must fully disclose what the invention is, how it operates, and the easiest way known by the inventor to make it.It is actually 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 his or her disclosures for the public, inventors will continually make an effort to develop technologies and disclose these to the public. Providing these with the monopoly allows them to profit financially through the invention. Without this “tradeoff,” there would be few incentives to produce technologies, because without a patent monopoly an inventor’s hard work will bring him no financial reward.Fearing that their invention could be stolen once they try to commercialize it, the inventor might never tell a soul regarding their invention, as well as the public would not benefit.
The grant of rights within a patent can last for a limited period.Utility patents expire 20 years when they are filed.If this type of was not the case, and patent monopolies lasted indefinitely, there could be serious consequences. As an example, if Thomas Edison still held an in-force patent for your light bulb, we might probably need to pay about $300 to purchase a light bulb today.Without competition, there could be little incentive for Edison to improve upon his light bulb.Instead, once the Edison light bulb patent expired, everyone was free to manufacture light bulbs, and many companies did.The vigorous competition to accomplish just that after expiration in the Market An Invention Idea resulted in better quality, lower costing light bulbs.
II. Kinds of patents
There are essentially three kinds of patents which you ought to know of — utility patents, design patents, and provisional patent applications. A utility patent relates to inventions which may have a “functional” aspect (quite simply, the invention accomplishes a utilitarian result — it genuinely “does” something).Quite simply, the thing which can be different or “special” concerning the invention must be to get a functional purpose.To qualify 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 one or more of such categories, so that you need not be concerned with which category best describes your invention.
A) Machine: imagine a “machine” as something which accomplishes an activity as a result of interaction of its physical parts, for instance a can opener, an automobile engine, a fax machine, etc.This is the combination and interconnection of these physical parts in which we are concerned and which can be protected through the patent.
B) Article of manufacture: “articles of manufacture” needs to be looked at as things which accomplish a task just like a unit, but with no interaction of various physical parts.While articles of manufacture and machines may appear to be similar in many instances, you can distinguish the two by thinking of articles of manufacture as increasing numbers of simplistic items that routinely have no moving parts. A paper clip, as an example is an article of manufacture.It accomplishes a task (holding papers together), but is clearly not just a “machine” as it is a simple device which will not rely on the interaction of numerous parts.
C) Process: a way of doing something through several steps, each step interacting in some manner with a physical element, is regarded as a “process.” An activity can be a new way of manufacturing a known product or can even be considered a new use for a known product. Board games are usually protected as being a process.
D) Composition of matter: typically chemical compositions including pharmaceuticals, mixtures, or compounds including soap, concrete, paint, plastic, and the like can be patented as “compositions of matter.” Food items and recipes are often protected in this manner.
A design patent protects the “ornamental appearance” of the object, instead of its “utility” or function, which is protected by a utility patent. In other words, in the event the invention is really a useful object that has a novel shape or overall look, a design patent might provide the appropriate protection. To prevent infringement, a copier would have to generate a version that will not look “substantially like the ordinary observer.”They cannot copy the form and overall appearance without infringing the design and style patent.
A provisional patent application is really a step toward obtaining a utility patent, where invention might not even anticipate to get a utility patent. In other words, if this seems like the invention cannot yet obtain a utility patent, the provisional application may be filed inside the Patent Office to establish the inventor’s priority towards the invention.As the inventor will continue to develop the invention making further developments which allow a utility patent to become obtained, then the inventor can “convert” the provisional application to some full utility application. This later application is “given credit” for that date if the provisional application was filed.
A provisional patent has several advantages:
A) Patent Pending Status: The most well-known advantage of a Provisional Patent Application is that it allows the inventor to right away begin marking the product “patent pending.” This has a time-proven tremendous commercial value, just like the “as seen on television” label which is placed on many products. An item bearing both these phrases clearly possesses a professional marketing advantage right from the start.
B) Capability to increase the invention: After filing the provisional application, the inventor has twelve months to “convert” the provisional in to a “full blown” utility application.During that year, the inventor need to commercialize the product and assess its potential. When 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 an ordinary utility application which should not be changed in any respect, a provisional application may have additional material included in it to enhance it upon its conversion within one year.Accordingly, any helpful tips or tips that had been obtained from the inventor or his marketing/advertising agents during commercialization of the product can be implemented and guarded at that time.
C) Establishment of any filing date: The provisional patent application offers the inventor having a crucial “filing date.” In other words, the date that this 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 certain your invention is actually a potential candidate for a utility patent (as it fits within one of many statutory classes), you need to then move ahead to evaluate whether your invention can satisfy two key requirements — “novelty” and “unobviousness.” These two requirements are essentially concerned with whether your invention is completely new, and in case so, whether there exists a substantial difference between it and other products within the related field.
A) Novelty: To acquire a utility patent, you have to initially decide if your invention is “novel”. Quite simply, is the invention new?Have you been the very first person to get considered it? For instance, if you were to obtain a patent on the light bulb, it appears quite clear which you would not eligible to a patent, since the light bulb will not be a new invention. The Patent Office, after receiving your application, would reject it based upon the truth 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 recognized to the public more than one year before you file a patent application for that invention).
To your invention to get novel with regards to other inventions on earth (prior art), it must just be different in some minimal way. Any trivial physical difference will suffice to render your invention novel more than a similar invention.If you were to invent a square light bulb, your invention would sometimes be novel compared to the Edison light bulb (since his was round/elliptical). When the patent office were to cite the round Edison light bulb against your square one as prior art to show that your particular invention had not been novel, they might be incorrect. However, if there exists an invention which is just like yours in every single way your invention lacks novelty and is also not patentable.
Typically, the novelty requirement is extremely very easy to overcome, since any slight variation in good shape, size, blend of elements, etc. will satisfy it. However, even though the invention is novel, it might fail the other requirement mentioned previously: “non-obviousness.” So, in the event that your invention overcomes the novelty requirement, usually do not celebrate yet — it really is more challenging to satisfy the non-obviousness requirement.
B) Non-obviousness: As stated before, the novelty requirement will be the easy obstacle to overcome inside the quest for New Invention Idea. Indeed, if novelty were the only real requirement to fulfill, then just about everything conceivable might be patented as long since 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 as well as the related prior art might not “identical” (meaning that the invention is novel with respect to the prior art), the invention may nevertheless be unpatentable if the differences between it and the related prior art could be considered “obvious” to a person having ordinary skill in the area of the specific invention.
This can be 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 otherwise — it is actually more often than not 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 quite a bit of room for many different opinions, considering that the requirement is inherently subjective: differing people, including different Examiners at the Patent Office, may have different opinions regarding if the invention is truly obvious.
Some common examples of things which are certainly not usually considered significant, and therefore that are usually considered “obvious” include: the mere substitution of materials to make something much lighter; changing the dimensions or color; combining pieces of what 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 varieties of prior art which can be utilized to prevent you from obtaining a patent. Quite simply, it defines exactly those activities that the PTO can cite against you so as to prove that your particular invention is not in fact novel or even to show that your invention is obvious. These eight sections can be broken down into an arranged and understandable format composed of two main categories: prior art that is dated before your date of “invention” (thus showing that you will be not the very first inventor); and prior art which dates back before your “filing date” (thus showing which you might have waited too long to file for a patent).
A) Prior art which dates back prior to your date of invention: It might seem to sound right that when prior art exists which dates before your date of invention, you should not be entitled to have a patent on that invention since you would not truly function as the first inventor. Section 102(a) from the patent law specifically describes those things which can be used as prior art when they occur before your date of invention:
1) Public knowledge in the United States: Any evidence that the invention was “known” by others, in the United States, just before your date of invention. Even if you have no patent or written documentation showing that your invention was known in the United States, the PTO may still reject your patent application under section 102(a) as lacking novelty when they can show that the invention was generally known to the public just before your date of invention.
2) Public use in america: Use by others in the invention you are attempting to patent in public in america, before your date of invention, can be held against your patent application from the PTO. This will make clear sense, since if someone else was publicly making use of the invention before you even conceived of it, you obviously can not be the first and first inventor of this, and you may not need to obtain a patent for it.
3) Patented in the United States or abroad: Any U . S . or foreign patents which issued before your date of invention and which disclose your invention will likely be used against your patent application through the PTO. For instance, 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 (including books, newspapers, magazines, trade journals, etc.) which disclose your invention and were published 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 usually are not the first inventor (since another person considered it before you) and you usually are not eligible for patent on it.
B)Prior art which dates back before your filing date: As noted above, prior art was defined as everything known before your conception of the invention or everything known to people more than one year before your filing of the patent application. What this means is that in many circumstances, even although you were the first one to have conceived/invented something, you may be unable to obtain a patent onto it if this has entered the realm of public knowledge and more than 1 year has passed between that point and your filing of the patent application. The objective of this rule is always to encourage people to try to get patents on their inventions as quickly as possible or risk losing them forever. Section 102(b) of the patent law defines specifically those kinds of prior art which can be applied against you being a “one-year bar” the following:
1) Commercial activity in the United States: When the invention you intend to patent was sold or offered for sale in the usa several 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 present it available for sale on January 3, 2008, in an attempt to raise some funds to get a patent. You need to file your patent application no later than January 3, 2009 (1 year from the day you offered it on the market).In the event you file your patent application on January 4, 2009, as an example, the PTO will reject your application as being barred since it was offered on the market several year just before your filing date.This would be the case if a person other than yourself begins selling your invention. Assume still that you simply conceived your invention on January 1, 2008, but failed to sell or offer it on the market publicly.You just kept it to yourself.Also think that on February 1, 2008, another person conceived of the invention and began selling it. This starts your 1 year clock running!If you do not file a patent on your invention by February 2, 2009, (1 year through the date one other person began selling it) then you certainly also will be forever barred from getting a patent. Note this provision from the law prevents from getting a patent, even though there is not any prior art dating back to before your date of conception and you also truly are the first inventor (thus satisfying 102(a)), for the reason that the invention was available to people for more than twelve months before your filing date because of one other person’s sale.Accordingly, “section 102(b) one-year bars” can ruin your chances of acquiring a patent even though you happen to be first inventor and possess satisfied section 102(a).
2) Public use in the usa: When the invention you wish to patent was utilized in america by you or some other more than one year before your filing of a patent application, then you definitely are “barred” from ever getting a patent on the invention. Typical examples of public use are once you or another person display and use the invention with a trade show or public gathering, on television, or elsewhere where the general public has potential access.People use will not need to be one that specifically promises to have the public mindful of the invention. Any use which can be potentially accessed from the public will suffice to begin with usually the one year clock running (but a secret use will usually not invoke the main one-year rule).
3) Printed publication in the usa or abroad: Any newspaper article, magazine article, trade paper, academic thesis or any other printed publication on your part or by another person, accessible to the public in the usa or abroad several year before your filing date, will stop you from getting a patent on the invention.Note that even an article authored by you, regarding your own invention, begins usually the one-year clock running.So, for example, if you detailed your invention in a press ndefzr and mailed it, this could start the one-year clock running.So too would the one-year clock start running for you personally in case a complete stranger published a printed article about the main topic of your invention.
4) Patented in the United States or abroad: When a U . S . 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 using 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 if the filing date of another patent is earlier than your date of invention. Under 102(b) which our company is discussing here, you can not obtain a patent with an invention that was disclosed in another patent issued over last year, even if your date of invention was before the filing date of this patent.