What is a patent? A U . S . Patent is actually a “grant of rights” for a limited period. In layman’s terms, it is a contract in which the U . S . government expressly permits an individual or company to monopolize a specific concept for a very limited time.
Typically, our government frowns upon any sort of monopolization in commerce, because of the belief that monopolization hinders free trade and competition, degrading our economy. A good example is definitely the forced break-up of Bell Telephone some years ago into the many regional phone companies. The federal government, specifically 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 us government permit a monopoly as Inventhelp George Foreman Commercial? The us government makes an exception to encourage inventors in the future forward making use of their creations. By doing this, the government actually promotes advancements in science and technology.
To begin with, it needs to be clear for you exactly how a patent behaves as a “monopoly. “A patent permits the property owner of the patent to prevent someone else from producing the product or making use of the process protected by the patent. Think of Thomas Edison along with his most popular patented invention, the light bulb. With his patent for that light bulb, Thomas Edison could prevent some other person or company from producing, using or selling lights without his permission. Essentially, nobody could compete with him inside the light bulb business, so therefore he possessed a monopoly.
However, in order to receive his monopoly, Thomas Edison were required to give something in exchange. He required to fully “disclose” his invention to the public.
To have a United States Patent, an inventor must fully disclose just what the invention is, the way it operates, and the easiest way known from the inventor to really make it.It is actually this disclosure to the public which entitles the inventor to your monopoly.The logic for carrying this out is the fact that by promising inventors a monopoly in turn for disclosures towards the public, inventors will continually attempt to develop technologies and disclose these to the public. Providing all of them with the monopoly allows them to profit financially through the invention. Without it “tradeoff,” there could be few incentives to produce technologies, because without a patent monopoly an inventor’s work would bring him no financial reward.Fearing their invention could be stolen when they try to commercialize it, the inventor might never tell a soul regarding their invention, as well as the public would never benefit.
The grant of rights under a patent can last for a limited period.Utility patents expire two decades when they are filed.If this was incorrect, and patent monopolies lasted indefinitely, there will be serious consequences. As an example, if Thomas Edison still held an in-force patent for your bulb, we might probably must pay about $300 to get a light bulb today.Without competition, there could be little incentive for Edison to enhance upon his light.Instead, after the Edison light bulb patent expired, everyone was able to manufacture lights, and several companies did.The vigorous competition to do that after expiration from the Edison patent ended in better quality, lower costing lights.
Types of patents. You will find essentially three varieties of patents which you should be aware of — utility patents, design patents, and provisional patent applications. A utility patent relates to inventions that have a “functional” aspect (in other words, 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 to get a functional purpose.To be eligible for utility patent protection, an invention also must fall within one or more from the following “statutory categories” as required under 35 USC 101. Remember that almost any physical, functional invention will belong to one or more of those categories, which means you do not need to be worried about which category best describes your invention.
A) Machine: imagine a “machine” as a thing that accomplishes an activity as a result of interaction of the physical parts, like a can opener, an automobile engine, a fax machine, etc.It will be the combination and interconnection of such physical parts in which we are concerned and which are protected from the Invention Help Companies.
B) Article of manufacture: “articles of manufacture” ought to be thought of as things that accomplish a job like a machine, but with no interaction of various physical parts.While articles of manufacture and machines may appear to be similar in many instances, it is possible to distinguish the two by considering articles of manufacture as more simplistic things which typically have no moving parts. A paper clip, for example is definitely an article of manufacture.It accomplishes a task (holding papers together), but is clearly not really a “machine” since it is an easy device which will not rely on the interaction of various parts.
C) Process: a way of accomplishing something through several steps, each step interacting in some way having a physical element, is known as a “process.” A process can be quite a new way of manufacturing a known product or could even be a brand 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, and the like may be patented as “compositions of matter.” Food items and recipes are frequently protected in this fashion.
A design patent protects the “ornamental appearance” of the object, rather than its “utility” or function, which is protected with a utility patent. Quite simply, if the invention is a useful object that includes a novel shape or overall look, a design patent might give you the appropriate protection. In order to avoid infringement, a copier would have to produce a version that fails to look “substantially similar to the ordinary observer.”They cannot copy the form and overall look without infringing the design patent.
A provisional patent application is actually a step toward obtaining a utility patent, in which the invention may not yet be ready to get a utility patent. Quite simply, when it seems as if the invention cannot yet get yourself a utility patent, the provisional application might be filed within the Patent Office to determine the inventor’s priority to the invention.Because the inventor consistently develop the invention making further developments which allow a utility patent to get obtained, then this inventor can “convert” the provisional application to a full utility application. This later application is “given credit” for that date once the provisional application was first filed.
A provisional patent has several positive aspects:
A) Patent Pending Status: Probably the most well known benefit from a Provisional Patent Application is it allows the inventor to right away begin marking the product “patent pending.” This has an occasion-proven tremendous commercial value, like the “as seen in the media” label which is applied to many products. A product bearing both these phrases clearly possesses an industrial marketing advantage from the very beginning.
B) Ability to improve 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 should try to commercialize the merchandise and assess its potential. If the product appears commercially viable during that year, then this inventor is encouraged to convert the provisional application in to a utility application.However, unlike an ordinary utility application which should not be changed by any means, a provisional application may have additional material added to it to enhance it upon its conversion within twelve months.Accordingly, any helpful tips or tips that were obtained from the inventor or his marketing/advertising agents during commercialization from the product may be implemented and protected during those times.
C) Establishment of a filing date: The provisional patent application also provides the inventor with 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.
Requirements for obtaining a utility patent. When you are certain your invention is actually a potential candidate for any utility patent (as it fits within one of the 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 focused on whether your invention is completely new, and when so, whether there is a substantial difference between it and other products within the related field.
A) Novelty: To obtain a utility patent, you need to initially see whether your invention is “novel”. Quite simply, is your invention new?Have you been the initial person to get looked at it? For instance, should you make application for a patent on the bulb, it seems quite clear that you simply would not be eligible to a patent, considering that the light is not really a whole new invention. The Patent Office, after receiving your application, would reject it based upon the fact that Edison invented the sunshine bulb many years ago. In rejecting your patent application, the Patent Office would actually cite the Edison light patent against you as relevant “prior art” (prior art is everything “known” just before your conception from the invention or everything proven to the public several year before you file a patent application for that invention).
For your invention to become novel regarding other inventions in the world (prior art), it should just be different in certain minimal way. Any trivial physical difference will suffice to render your invention novel spanning a similar invention.If you decide to invent a square light bulb, your invention would sometimes be novel when compared to Edison light bulb (since his was round/elliptical). In the event the patent office were to cite the round Edison light against your square one as prior art to exhibit that the invention was not novel, they could be incorrect. However, if there exists an invention that is just like yours in every single way your invention lacks novelty and is also not patentable.
Typically, the novelty requirement is incredibly simple to overcome, since any slight variation in shape, size, blend of elements, etc. will satisfy it. However, however the invention is novel, it may fail one other requirement mentioned above: “non-obviousness.” So, in the event that your invention overcomes the novelty requirement, usually do not celebrate yet — it is harder to meet 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 a patent. Indeed, if novelty were the only requirement in order to satisfy, then just about everything conceivable may be patented provided that it differed slightly coming from all previously developed conceptions. Accordingly, a more difficult, complex requirement has to be satisfied after the novelty question for you is met. This second requirement is referred to as “non-obviousness.”
The non-obviousness requirement states partly that although an invention and the related prior art might 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 and also the related prior art could be considered “obvious” to someone having ordinary skill in the specific invention.
This really is in actuality the Patent and Trademark Office’s way of subjectively judging the “quality” of the invention. Clearly the PTO has no latitude in judging whether your invention is novel or otherwise not — it really is almost always quite evident whether any differences exist in between your invention and also the prior art.About this point there is absolutely no room for subjective opinion. Regarding non-obviousness, however, there is certainly a substantial amount of room for various opinions, since the requirement is inherently subjective: differing people, including different Examiners on the Patent Office, will have different opinions regarding whether or not the invention is definitely obvious.
Some common examples of items that are not usually considered significant, and thus which are usually considered “obvious” include: the mere substitution of materials to make something lighter in weight; 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 is considered prior art by 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. In other words, it defines exactly those activities in which the PTO can cite against you so as to prove that your invention is not in reality novel or to demonstrate that your invention is obvious. These eight sections may be split up into an organized and understandable format composed of two main categories: prior art that is dated before your date of “invention” (thus showing that you are currently not the very first inventor); and prior art which extends back prior to your “filing date” (thus showing which you may have waited very long to file to get a patent).
A) Prior art which extends back just before your date of invention: It would manage to sound right that if prior art exists which dates before your date of invention, you must not be entitled to acquire a patent on that invention since you would not truly function as the first inventor. Section 102(a) in the patent law specifically describes those things which can be used prior art if 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 there is no patent or written documentation showing that your particular invention was known in the usa, the PTO can still reject your patent application under section 102(a) as lacking novelty if they can demonstrate that your invention was generally recognized to the public prior to your date of invention.
2) Public use in the United States: Use by others of the invention you are attempting to patent in public areas in the usa, prior to your date of invention, can be held against your patent application through the PTO. This should make clear sense, since if someone else was publicly utilizing the invention even before you conceived of it, you obviously should not be the initial and first inventor of it, and you do not need 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 likely be used against your patent application by the PTO. As an example, assume 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 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 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 are not the initial inventor (since somebody else considered it before you decide to) and you also are not entitled to patent into it.
B)Prior art which dates back just before your filing date: As noted above, prior art was defined as everything known just before your conception in the invention or everything known to people several year before your filing of the patent application. This means that in lots of circumstances, even when you were the first one to have conceived/invented something, you may be unable to obtain a patent on it if this has entered the realm of public knowledge and more than one year has gone by between that time and your filing of the patent application. The purpose of this rule is always to encourage people to get patents on the inventions as soon as possible or risk losing them forever. Section 102(b) from the patent law defines specifically those types of prior art which can be used against you as being a “one-year bar” as follows:
1) Commercial activity in the usa: If the invention you wish to patent was sold or offered for sale in america multiple year prior to deciding to file a patent application, then you are “barred” from ever getting a patent on your own invention.
EXAMPLE: you conceive of the invention on January 1, 2008, and provide it available for sale on January 3, 2008, so as to raise some funds to apply for a patent. You have to file your patent application no later than January 3, 2009 (1 year through the day you offered it on the market).Should you file your patent application on January 4, 2009, as an example, the PTO will reject the application as being barred because it was offered on the market more than one year prior to your filing date.This also would be the case if somebody other than yourself begins selling your invention. Assume still that you conceived your invention on January 1, 2008, but did not sell or offer it for sale publicly.You simply kept it to yourself.Also believe that on February 1, 2008, another person conceived of your 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 the other person began selling it) then you certainly also will be forever barred from acquiring a patent. Note that this provision in the law prevents from getting a patent, although there is not any prior art dating back to before your date of conception and you also truly are the very first inventor (thus satisfying 102(a)), for the reason that the invention was accessible to people more than twelve months before your filing date as a result of one other person’s sale.Accordingly, “section 102(b) one-year bars” can ruin your odds of obtaining a patent even when you are the initial inventor and possess satisfied section 102(a).
2) Public use in the United States: When the invention you want to Innovation was used in america on your part or another multiple year before your filing of any patent application, then you definitely are “barred” from ever acquiring a patent on your own invention. Typical samples of public use are whenever you or someone else display and use the invention at a trade exhibition or public gathering, on tv, or somewhere else where the general public has potential access.The general public use do not need to be one that specifically promises to make the public mindful of the invention. Any use which is often potentially accessed from the public will suffice to begin with usually the one year clock running (but a secret use will often 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 some other printed publication on your part or by another individual, accessible to the general public in america or abroad several year before your filing date, will prevent you from obtaining a patent on your own invention.Remember that even a post authored by you, concerning your own invention, will start the one-year clock running.So, for example, in the event you detailed your invention in a natmlt release and mailed it all out, this might start the main one-year clock running.So too would the one-year clock start running for you if a complete stranger published a printed article about the subject of your invention.
4) Patented in the usa or abroad: When a United States Of America or foreign patent covering your invention issued spanning a year prior to your filing date, you will be barred from getting a patent. Compare this with all the previous section regarding United States Of America and foreign patents which states that, under 102(a) from the patent law, you are prohibited from obtaining a patent if the filing date of another patent is sooner than your date of invention. Under 102(b) which we have been discussing here, you can not obtain a patent on an invention that was disclosed in another patent issued over last year, even if your date of invention was before the filing date of that patent.