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 a contract where the U . S . government expressly permits an individual or company to monopolize a particular concept for a short 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 in to the many regional phone companies. The government, in particular the Justice Department (the governmental agency which prosecutes monopoly or “antitrust” violations), believed that Bell Telephone was an unfair monopoly and forced it to relinquish its monopoly powers on the telephone industry.
Why, then, would the government permit a monopoly in the form of New Ideas For Inventions? The us government makes an exception to encourage inventors ahead forward using their creations. In doing so, the federal government actually promotes advancements in technology and science.
First of all, it should be clear to you exactly how a patent works as a “monopoly. “A patent permits the owner from the patent to prevent anyone else from producing the item or making use of the process covered by the patent. Consider Thomas Edison and his most popular patented invention, the light bulb. Together with his patent for that light, Thomas Edison could prevent every other person or company from producing, using or selling light bulbs without his permission. Essentially, no one could contest with him within the light bulb business, and therefore he possessed a monopoly.
However, in order to receive his monopoly, Thomas Edison needed to give something in exchange. He necessary to fully “disclose” his invention to the public.
To have a United States Patent, an inventor must fully disclose exactly what the invention is, how it operates, and the most effective way known through the inventor making it.It is actually this disclosure for the public which entitles the inventor to a monopoly.The logic for carrying this out is the fact by promising inventors a monopoly in return for disclosures towards the public, inventors will continually strive to develop new technologies and disclose these to the public. Providing all of them with the monopoly enables them to profit financially from the invention. Without it “tradeoff,” there would be few incentives to develop new technologies, because without having a patent monopoly an inventor’s work will bring him no financial reward.Fearing that their invention would be stolen once they attempt to commercialize it, the inventor might never tell a soul regarding their invention, and also the public would not benefit.
The grant of rights under a patent will last for a small period.Utility patents expire 20 years when they are filed.If the was incorrect, and patent monopolies lasted indefinitely, there could be serious consequences. For instance, if Thomas Edison still held an in-force patent for your light bulb, we might probably must pay about $300 to buy a light bulb today.Without competition, there could be little incentive for Edison to enhance upon his light.Instead, once the Edison bulb patent expired, everybody was liberated to manufacture bulbs, and several companies did.The vigorous competition to perform exactly that after expiration of the Edison patent resulted in better quality, lower costing lights.
Types 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 really “does” something).Put simply, one thing which can be different or “special” about the invention should be to get a functional purpose.To be eligible for utility patent protection, an invention also must fall within a minumum of one from the following “statutory categories” as required under 35 USC 101. Remember that almost any physical, functional invention will fall into a minumum of one of these categories, which means 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 its physical parts, such as a can opener, a car engine, a fax machine, etc.This is the combination and interconnection of these physical parts that we have been concerned and that are protected through the Patent Helper.
B) Article of manufacture: “articles of manufacture” should be regarded as things that accomplish a task just like a machine, but with no interaction of numerous physical parts.While articles of manufacture and machines may seem to be similar in many cases, 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 example is an article of manufacture.It accomplishes an activity (holding papers together), but is clearly not really a “machine” since it is an easy device which fails to rely on the interaction of various parts.
C) Process: a means of performing something through several steps, each step interacting in some manner with a physical element, is known as a “process.” A process can be a new method of manufacturing a known product or can also be a whole new use for any known product. Board games are typically protected as a process.
D) Composition of matter: typically chemical compositions such as pharmaceuticals, mixtures, or compounds such as soap, concrete, paint, plastic, and the like can be patented as “compositions of matter.” Food items and recipes tend to be protected in this way.
A design patent protects the “ornamental appearance” of the object, instead of its “utility” or function, which is protected with a utility patent. Quite simply, when the invention is a useful object that includes a novel shape or overall appearance, a design patent might give you the appropriate protection. To avoid infringement, a copier would need to generate a version that fails to look “substantially similar to the ordinary observer.”They cannot copy the shape and overall look without infringing the style patent.
A provisional patent application is a step toward obtaining a utility patent, in which the invention might not exactly yet anticipate to get yourself a utility patent. Put simply, if this seems as if the invention cannot yet get a utility patent, the provisional application may be filed in the Patent Office to determine the inventor’s priority for the invention.Since the inventor will continue to develop the invention making further developments which permit a utility patent to be obtained, then your inventor can “convert” the provisional application to a full utility application. This later application is “given credit” for the date once the provisional application was initially filed.
A provisional patent has several positive aspects:
A) Patent Pending Status: The most well-known benefit of a Provisional Patent Application is that it allows the inventor to immediately begin marking the item “patent pending.” This has a period-proven tremendous commercial value, just like the “as seen on TV” label which is applied to many products. A product or service bearing both of these phrases clearly possesses an industrial marketing advantage from the very beginning.
B) Ability to increase the invention: After filing the provisional application, the inventor has one year to “convert” the provisional into a “full blown” utility application.In that year, the inventor need to commercialize the item and assess its potential. If the product appears commercially viable in that year, then the inventor is encouraged to convert the provisional application in to a utility application.However, unlike an ordinary utility application which can not be changed by any means, a provisional application might have additional material included in it to boost it upon its conversion within twelve months.Accordingly, any helpful tips or tips which were obtained by the inventor or his marketing/advertising agents during commercialization from the product can be implemented and protected during those times.
C) Establishment of the filing date: The provisional patent application also provides the inventor having a crucial “filing date.” In other words, the date that this provisional is filed becomes the invention’s filing date, for the later filed/converted utility patent.
Requirements for obtaining a utility patent. Once you are sure that your invention is actually a potential candidate to get a utility patent (because it fits within one of many statutory classes), you ought to then move ahead to evaluate whether your invention can satisfy two key requirements — “novelty” and “unobviousness.” These two requirements are essentially worried about whether your invention is completely new, and in case so, whether there exists a substantial distinction between it and other products in the related field.
A) Novelty: To obtain a utility patent, you have to initially determine whether your invention is “novel”. In other words, is your invention new?Are you currently the very first person to possess looked at it? For instance, if you decide to apply for a patent on the light bulb, it seems quite clear which you would not eligible for a patent, because the bulb is not really a brand new invention. The Patent Office, after receiving your application, would reject it based on the truth that Edison invented the sunshine bulb many years ago. In rejecting your patent application, the Patent Office would actually cite the Edison bulb patent against you as relevant “prior art” (prior art is everything “known” prior to your conception in the invention or everything recognized to the public more than one year before you file a patent application for your invention).
For the invention to become novel regarding 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 spanning a similar invention.If you were to invent a square bulb, your invention would sometimes be novel when compared to Edison light bulb (since his was round/elliptical). If the patent office would cite the round Edison 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 can be identical to yours in every way your invention lacks novelty and is also not patentable.
Typically, the novelty requirement is incredibly simple 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 stated earlier: “non-obviousness.” So, in the event that your invention overcomes the novelty requirement, do not celebrate yet — it is actually harder to fulfill the non-obviousness requirement.
B) Non-obviousness: As mentioned above, the novelty requirement is the easy obstacle to overcome inside the pursuit of a patent. Indeed, if novelty were the only real requirement in order to satisfy, then almost anything conceivable might be patented as long as it differed slightly coming from all previously developed conceptions. Accordingly, a much more difficult, complex requirement has to be satisfied after the novelty question for you is met. This second requirement is called “non-obviousness.”
The non-obviousness requirement states in part that although an invention as well as the related prior art may not be “identical” (meaning that the invention is novel with respect to the prior art), the invention may nevertheless be unpatentable if the differences between it as well as the related prior art will be considered “obvious” to a person having ordinary skill in the area of the particular invention.
This really is in actuality the Patent and Trademark Office’s means of subjectively judging the “quality” of the invention. Clearly the PTO has no latitude in judging whether your invention is novel or not — it is more often than not quite evident whether any differences exist involving the invention and the prior art.On this point there is not any room for subjective opinion. Regarding non-obviousness, however, there exists a large amount of room for a number of opinions, considering that the requirement is inherently subjective: differing people, including different Examiners on the Patent Office, could have different opinions regarding whether or not the invention is definitely obvious.
Some common examples of items that usually are not usually considered significant, and therefore which are usually considered “obvious” include: the mere substitution of materials to create something much lighter; changing the size and style or color; combining items of the type commonly found together; substituting one well known component for an additional similar component, etc.
IV. What exactly is considered prior art from the Patent Office?
The patent laws, specifically 35 U.S.C. section 102, outline eight major varieties of prior art which could be used to stop 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 invention is not actually novel or demonstrate that your invention is obvious. These eight sections can be divided into an organized and understandable format comprising two main categories: prior art which can be dated before your date of “invention” (thus showing that you are not the very first inventor); and prior art which dates back prior to your “filing date” (thus showing which you may have waited too long to file for a patent).
A) Prior art which extends back just before your date of invention: It could seem to seem sensible that when prior art exists which dates before your date of invention, you should not be entitled to have a patent on that invention because you would not truly function as the first inventor. Section 102(a) in the patent law specifically describes the things which can be used prior art should they occur before your date of invention:
1) Public knowledge in the United States: Any evidence that your invention was “known” by others, in the usa, just before your date of invention. Even if there is no patent or written documentation showing that the invention was known in the United States, 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 people before your date of invention.
2) Public use in america: Use by others of the invention you are trying to patent in public places in the usa, prior to your date of invention, can be held against your patent application by the PTO. This ought to make clear sense, since if a person else was publicly using the invention even before you conceived of it, you obviously cannot be the original and first inventor of it, and you may not deserve to receive a patent for this.
3) Patented in the usa or abroad: Any United States or foreign patents which issued just before 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 may use any patents which disclose the same lobster de-shelling tool, U . S . 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 United States or foreignprinted publications (like books, newspapers, magazines, trade journals, etc.) which disclose your invention and were published before your date of invention will stop you from getting a patent.Again, the reasoning here is when your conception was described publicly in a printed publication, then you definitely usually are not the very first inventor (since someone else considered it before you) and you are certainly not eligible for patent on it.
B)Prior art which dates back before your filing date: As noted above, prior art was considered everything known just before your conception of the invention or everything recognized to people several year before your filing of any patent application. Therefore that in many circumstances, even though you were the first to have conceived/invented something, you may be unable to get a patent onto it when it has entered the world of public knowledge and more than twelve months has gone by between that time and your filing of a patent application. The goal of this rule is always to encourage people to get patents on their own inventions as quickly as possible or risk losing them forever. Section 102(b) in the patent law defines specifically those varieties of prior art which is often used against you as a “one-year bar” the following:
1) Commercial activity in the United States: In the event the invention you want to patent was sold or offered available for sale in the usa more than one year prior to deciding to file a patent application, then you are “barred” from ever getting a patent on the invention.
EXAMPLE: you conceive of the invention on January 1, 2008, and present it for sale on January 3, 2008, in an attempt to raise some funds to apply for a patent. You must file your patent application no later than January 3, 2009 (twelve months through the day you offered it for sale).Should you file your patent application on January 4, 2009, for instance, the PTO will reject your application as being barred since it was offered on the market several year prior to your filing date.This will be the case if a person besides yourself begins selling your invention. Assume still which you conceived your invention on January 1, 2008, but did not sell or offer it for sale publicly.You just kept it to yourself.Also assume that on February 1, 2008, somebody else conceived of your own invention and began selling it. This starts your one year clock running!If you do not file a patent on your own invention by February 2, 2009, (1 year from the date one other person began selling it) then you certainly also will be forever barred from acquiring a patent. Remember that this provision in the law prevents you from obtaining a patent, even though there is absolutely no prior art going back to before your date of conception and you are indeed the first inventor (thus satisfying 102(a)), mainly because the invention was available to the general public more than twelve months before your filing date as a result of the other person’s sale.Accordingly, “section 102(b) one-year bars” can ruin your chances of getting a patent even though you are the initial inventor and have satisfied section 102(a).
2) Public use in the United States: When the invention you intend to Can I Patent An Idea was applied in the usa on your part or any other multiple year before your filing of the patent application, then you are “barred” from ever getting a patent on your own invention. Typical types of public use are whenever you or another person display and use the invention with a trade show or public gathering, on television, or anywhere else where the public has potential access.The general public use need not be one which specifically plans to make the public aware of the invention. Any use which is often potentially accessed by the public will suffice to start the one year clock running (but a secret use will often 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, available to people in the United States or abroad several year before your filing date, will prevent you from acquiring a patent on your invention.Be aware that even a write-up published by you, concerning your own invention, begins the one-year clock running.So, for instance, if you detailed your invention in a natmlt release and mailed it all out, this would start the main one-year clock running.So too would the main one-year clock start running for you in case a complete stranger published a printed article about the subject of your invention.
4) Patented in america or abroad: If a U . S . or foreign patent covering your invention issued more than a year before your filing date, you will end up barred from acquiring a patent. Compare this using the previous section regarding United States and foreign patents which states that, under 102(a) from the patent law, you are prohibited from getting a patent in the event the filing date of another patent is sooner than your date of invention. Under 102(b) which our company is discussing here, you cannot obtain a patent on an invention which had been disclosed in another patent issued over last year, even if your date of invention was before the filing date of this patent.