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 an individual or company to monopolize a certain concept for a very limited time. Typically, our government frowns upon any kind of monopolization in commerce, because of the belief that monopolization hinders free trade and competition, degrading our economy. A great example is the forced break-up of Bell Telephone some in the past into the many regional phone companies. The 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 federal government permit a monopoly as a patent? The federal government makes an exception to encourage inventors to come forward making use of their creations. By doing this, the government actually promotes advancements in technology and science.
To begin with, it should be clear to you personally just how a patent behaves as a “monopoly. “A patent permits the property owner in the Inventhelp Wiki to prevent someone else from producing the item or using the process protected by the patent. Think of Thomas Edison along with his most well-known patented invention, the light bulb. With his patent for that light bulb, Thomas Edison could prevent any 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 receive his monopoly, Thomas Edison needed to give something in exchange. He necessary to fully “disclose” his invention towards the public. To obtain a U . S . Patent, an inventor must fully disclose just what the invention is, how it operates, and the easiest way known through the inventor making it.It is actually this disclosure for the public which entitles the inventor to your monopoly.The logic for accomplishing this is the fact by promising inventors a monopoly in exchange for their disclosures for the public, inventors will continually strive to develop new technologies and disclose those to people. Providing all of them with the monopoly enables them to profit financially through the invention. Without this “tradeoff,” there would be few incentives to develop technologies, because without having a patent monopoly an inventor’s hard work will bring him no financial reward.Fearing their invention would be stolen when they make an effort 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 can last for a small period.Utility patents expire 20 years when they are filed.If the had not been the case, and patent monopolies lasted indefinitely, there will be serious consequences. For example, if Thomas Edison still held an in-force patent for that light bulb, we might probably need to pay about $300 to buy a light bulb today.Without competition, there will 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 accomplish just that after expiration of the Idea Help led to higher quality, lower costing light bulbs.
II. Varieties of patents
There are essentially three varieties of patents which you ought to know of — utility patents, design patents, and provisional patent applications. A utility patent relates to inventions which have a “functional” aspect (put simply, the invention accomplishes a utilitarian result — it genuinely “does” something).Quite simply, one thing which can be different or “special” concerning the invention should be for any functional purpose.To be eligible for utility patent protection, an invention also must fall within one or more of 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, which means you need not be worried about which category best describes your invention.
A) Machine: consider a “machine” as something which accomplishes an activity due to the interaction of its physical parts, such as a can opener, an automobile engine, a fax machine, etc.It will be the combination and interconnection of these physical parts in which our company is concerned and which are protected by the patent.
B) Article of manufacture: “articles of manufacture” needs to be thought of as items that accomplish an activity just like a unit, but with no interaction of varied physical parts.While articles of manufacture and machines may seem to be similar in many cases, you can distinguish both by considering articles of manufacture as increasing numbers of simplistic things which routinely have no moving parts. A paper clip, as an example is an article of manufacture.It accomplishes a job (holding papers together), but is clearly not really a “machine” as it is a basic device which does not rely on the interaction of various parts.
C) Process: a way of doing something through a number of steps, each step interacting somehow with a physical element, is known as a “process.” An activity can become a new way of manufacturing a known product or can even become a 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 including 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 an object, rather than its “utility” or function, which can be protected with a utility patent. In other words, in the event the invention is really a useful object that includes a novel shape or overall appearance, a design patent might supply the appropriate protection. In order to avoid infringement, a copier would need to generate a version that fails to look “substantially like the ordinary observer.”They cannot copy the shape and overall look without infringing the design and style patent.
A provisional patent application is really a step toward acquiring a utility patent, where the invention might not even be ready to get yourself a utility patent. In other words, when it seems like the invention cannot yet get a utility patent, the provisional application may be filed inside the Patent Office to establish the inventor’s priority to the invention.Since the inventor continues to develop the invention and make further developments which allow 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 filed.
A provisional patent has several benefits:
A) Patent Pending Status: Probably the most well-known advantage of a Provisional Patent Application is that it allows the inventor to right away begin marking the item “patent pending.” It has a time-proven tremendous commercial value, just like the “as seen in the media” label that is put on many products. A product bearing both these phrases clearly possesses a commercial marketing advantage right in the first place.
B) Capacity to increase the invention: After filing the provisional application, the inventor has 1 year to “convert” the provisional in to a “full blown” utility application.During that year, the inventor should try to commercialize the product and assess its potential. When the product appears commercially viable during that year, then your inventor is encouraged to convert the provisional application right into a utility application.However, unlike a typical utility application which should not be changed by any means, a provisional application may have additional material included in it to enhance it upon its conversion within twelve months.Accordingly, any helpful tips or tips that had been obtained from the inventor or his marketing/advertising agents during commercialization in the product can be implemented and guarded at that time.
C) Establishment of the filing date: The provisional patent application also provides the inventor with 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 getting a utility patent. Once you are sure that your invention is actually a potential candidate to get a utility patent (since 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 focused on whether your invention is completely new, and when so, whether there is a substantial distinction between it and other products in the related field.
A) Novelty: To have a utility patent, you have to initially see whether your invention is “novel”. Put simply, is your invention new?Have you been the initial person to get considered it? For example, if you decide to apply for a patent on the light bulb, it appears quite clear that you simply would not really eligible for a patent, considering that the light bulb will not be a new invention. The Patent Office, after receiving the application, would reject it based on 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” before your conception from the invention or everything recognized to people several year before you file a patent application for that invention).
To your invention to get novel regarding other inventions on the planet (prior art), it should just be different in a few minimal way. Any trivial physical difference will suffice to render your invention novel spanning a similar invention.If you were to invent a square light bulb, your invention would actually 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 the invention had not been novel, they might be incorrect. However, if there exists an invention which is identical to yours in every way your invention lacks novelty and it is not patentable.
Typically, the novelty requirement is incredibly simple to overcome, since any slight variation in shape, size, mixture of elements, etc. will satisfy it. However, even even though the invention is novel, it might fail another requirement mentioned above: “non-obviousness.” So, if you find that your invention overcomes the novelty requirement, usually do not celebrate yet — it is actually more difficult to satisfy the non-obviousness requirement.
B) Non-obviousness: As stated before, the novelty requirement is the easy obstacle to overcome in the quest for New Invention Idea. Indeed, if novelty were the sole requirement in order to satisfy, then just about everything conceivable could be patented as long since it differed slightly from all previously developed conceptions. Accordingly, a much more difficult, complex requirement should be satisfied after the novelty real question is met. This second requirement is known as “non-obviousness.”
The non-obviousness requirement states in part that although an invention and also the related prior art might not “identical” (which means the invention is novel with respect to the prior art), the invention may nevertheless be unpatentable when the differences between it as well as the related prior art could 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 way 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 really is almost always quite evident whether any differences exist between your invention and the prior art.With 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, considering that the requirement is inherently subjective: different people, including different Examiners on the Patent Office, may have different opinions regarding whether or not the invention is really obvious.
Some common examples of items that are not usually considered significant, and therefore that are usually considered “obvious” include: the mere substitution of materials to make something much lighter; changing the size and style or color; combining items of the type commonly found together; substituting one well-known component for another 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 kinds of prior art which can be employed to stop you from getting a patent. In other words, it defines exactly those activities that the PTO can cite against you in an attempt to prove that the invention will not be in fact novel or to show that the invention is obvious. These eight sections can be broken down into a structured and understandable format consisting of two main categories: prior art which can be dated before your date of “invention” (thus showing that you are currently not the very first 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 prior to your date of invention: It might seem to make sense that when prior art exists which dates before your date of invention, you should not be entitled to obtain a patent on that invention as you would not truly become the first inventor. Section 102(a) in the patent law specifically describes the points which can be utilized 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, before your date of invention. Even if you have 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 when they can show that your particular invention was generally recognized to people prior to your date of invention.
2) Public use in america: Use by others in the invention you are trying to patent in public places in the United States, prior to your date of invention, can take place against your patent application through the PTO. This should make clear sense, since if somebody else was publicly utilizing the invention before you even conceived from it, you obviously cannot be the initial and first inventor of it, and you do not need to get a patent because of it.
3) Patented in the United States 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 from 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 or foreign, which issued before June 1, 2007 (your date of invention) against your patent application.
4) Published publicly in U . S . or abroad: Any United States or foreignprinted publications (such as books, newspapers, magazines, trade journals, etc.) which disclose your invention and were published prior to your date of invention will keep you from acquiring a patent.Again, the reasoning here is that if your conception was described publicly in a printed publication, then you are not the first inventor (since another person considered it before you) and you usually are not entitled to patent onto 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 proven to the general public multiple year before your filing of any patent application. What this means is that in lots of circumstances, even although you were the first one to have conceived/invented something, you will end up unable to acquire a patent into it if it has entered the world of public knowledge and more than one year has gone by between that point and your filing of the patent application. The goal of this rule is to persuade folks to get patents on their own inventions at the earliest opportunity or risk losing them forever. Section 102(b) from 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 the usa: If the invention you intend to patent was sold or offered available for sale in the United States several year before you file a patent application, then you certainly are “barred” from ever acquiring a patent on your invention.
EXAMPLE: you conceive of the invention on January 1, 2008, and offer it on the market on January 3, 2008, in an effort to raise some funds to try to get a patent. You have to file your patent application no later than January 3, 2009 (1 year from your 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 the application for being barred as it was offered available for sale more than one year just before your filing date.This is the case if somebody 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 available for sale publicly.You just kept it to yourself.Also believe that on February 1, 2008, somebody else conceived of the invention and began selling it. This starts your one year clock running!If you do not file a patent on your invention by February 2, 2009, (one year from your date another person began selling it) then you also will be forever barred from acquiring a patent. Note that this provision from the law prevents you against acquiring a patent, even though there is no prior art dating back to before your date of conception and you also truly are the first inventor (thus satisfying 102(a)), mainly because the invention was available to the general public for over one year 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 acquiring a patent even though you are the first inventor and also have satisfied section 102(a).
2) Public use in america: When the invention you wish to patent was utilized in america by you or some other more than one year before your filing of any patent application, then you certainly are “barred” from ever obtaining a patent on the invention. Typical examples of public use are once you or somebody else display and use the invention at a trade show or public gathering, on television, or somewhere else where the general public has potential access.The general public use will not need to be one that specifically plans to have the public mindful of the invention. Any use which can be potentially accessed through the public will suffice to begin usually the one year clock running (but a secret use will most likely not invoke usually the one-year rule).
3) Printed publication in the United States or abroad: Any newspaper article, magazine article, trade paper, academic thesis or any other printed publication on your part or by another individual, accessible to the public in america or abroad several year before your filing date, will prevent you from obtaining a patent on the invention.Note that even an article published by you, concerning your own invention, will begin the main one-year clock running.So, for instance, in the event you detailed your invention in a press ndefzr and mailed it out, this could start the one-year clock running.So too would the one-year clock start running for you when a complete stranger published a printed article about the main topic of your invention.
4) Patented in the United States or abroad: When a United States or foreign patent covering your invention issued more than a year just before your filing date, you may be barred from obtaining a patent. Compare this with the previous section regarding United States Of America and foreign patents which states that, under 102(a) in the patent law, you might be prohibited from acquiring a patent if the filing date of some other patent is earlier than your date of invention. Under 102(b) which we have been discussing here, you are unable to get a patent upon an invention that was disclosed in another patent issued over this past year, even if your date of invention was before the filing date of the patent.