What is a patent? A United States Patent is essentially a “grant of rights” for a limited period. In layman’s terms, it is a contract in which the United States government expressly permits an individual or company to monopolize a specific concept for a very limited time.
Typically, our government frowns upon any type of monopolization in commerce, as a result of belief that monopolization hinders free trade and competition, degrading our economy. A good example will be the forced break-up of Bell Telephone some years back into the many regional phone companies. The us 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 by means of I Have An Idea For An Invention? The us government makes an exception to encourage inventors to come forward with their creations. In doing so, the us government actually promotes advancements in technology and science.
To start with, it ought to be clear to you exactly how a patent acts as a “monopoly. “A patent permits the property owner from the patent to avoid anyone else from producing the item or making use of the process included in the patent. Think about Thomas Edison along with his most well-known patented invention, the lighting bulb. Along 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 person could contest with him within the bulb business, and therefore he possessed a monopoly.
However, to be able to receive his monopoly, Thomas Edison needed to give something in turn. He required to fully “disclose” his invention towards the public.
To acquire a United States Patent, an inventor must fully disclose just what the invention is, the actual way it operates, and the best way known from the inventor to make it.It really is this disclosure towards the public which entitles the inventor to your monopoly.The logic for doing this is that by promising inventors a monopoly in return for disclosures for the public, inventors will continually attempt to develop technologies and disclose those to people. Providing them with the monopoly enables them to profit financially from your invention. Without it “tradeoff,” there will be few incentives to produce new technologies, because without a patent monopoly an inventor’s effort will bring him no financial reward.Fearing their invention would be stolen once they try to commercialize it, the inventor might never tell a soul with regards to their invention, and the public would not benefit.
The grant of rights under a patent will last for a limited period.Utility patents expire twenty years once they are filed.If this was not the case, and patent monopolies lasted indefinitely, there will be serious consequences. For example, if Thomas Edison still held an in-force patent for the bulb, we may 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, when the Edison bulb patent expired, everyone was liberated to manufacture light bulbs, and many companies did.The vigorous competition to perform just that after expiration from the Edison patent led to higher quality, lower costing lights.
Types of patents. There are essentially three kinds of patents which you should know of — utility patents, design patents, and provisional patent applications. A utility patent applies to inventions which may have a “functional” aspect (put simply, the invention accomplishes a utilitarian result — it really “does” something).Quite simply, one thing that is different or “special” regarding the invention has to be for any functional purpose.To qualify 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. Take into account that virtually any physical, functional invention will fall into one or more of those categories, so you need not be concerned with which category best describes your invention.
A) Machine: imagine a “machine” as a thing that accomplishes a job because of the interaction of their physical parts, such as a can opener, a vehicle engine, a fax machine, etc.It will be the combination and interconnection of those physical parts in which our company is concerned and which are protected by the Inventhelp Inventions Store.
B) Article of manufacture: “articles of manufacture” should be thought of as items that accomplish a job like a machine, but without the interaction of numerous physical parts.While articles of manufacture and machines may appear to be similar in many cases, it is possible to distinguish the two by thinking about articles of manufacture as increasing numbers of simplistic things which routinely have no moving parts. A paper clip, for example is an article of manufacture.It accomplishes a task (holding papers together), but is clearly not really a “machine” as it is a simple device which fails to rely on the interaction of various parts.
C) Process: a means of accomplishing something through several steps, each step interacting somehow having a physical element, is regarded as a “process.” A process could be a new approach to manufacturing a known product or can even be a brand new use for any known product. Board games are generally protected being a process.
D) Composition of matter: typically chemical compositions such as pharmaceuticals, mixtures, or compounds like 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 your object, as opposed to its “utility” or function, which can be protected by a utility patent. In other words, if the invention is actually a useful object that includes a novel shape or overall appearance, a design patent might give you the appropriate protection. In order to avoid infringement, a copier will have to produce a version that fails to look “substantially just 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 exactly yet anticipate to get a utility patent. Quite simply, if this seems as though the invention cannot yet get a utility patent, the provisional application could be filed in the Patent Office to determine the inventor’s priority for the invention.Since the inventor will continue to develop the invention to make further developments that allow a utility patent to get obtained, then your inventor can “convert” the provisional application to your full utility application. This later application is “given credit” for the date when the provisional application was initially filed.
A provisional patent has several benefits:
A) Patent Pending Status: By far the most popular benefit from a Provisional Patent Application is that it allows the inventor to instantly begin marking the item “patent pending.” It has a time-proven tremendous commercial value, like the “as seen on television” label which can be applied to many products. A product or service bearing these two phrases clearly possesses a professional marketing advantage from the very beginning.
B) Capability to enhance the invention: After filing the provisional application, the inventor has one year to “convert” the provisional into a “full blown” utility application.During that year, the inventor need to commercialize the merchandise and assess its potential. When 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 in any way, a provisional application could have additional material added to it to boost it upon its conversion within twelve months.Accordingly, any helpful information or tips that were obtained from the inventor or his marketing/advertising agents during commercialization from the product may be implemented and protected at that time.
C) Establishment of a filing date: The provisional patent application offers the inventor using a crucial “filing date.” Quite simply, the date 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 sure that your invention is really a potential candidate for any utility patent (since it fits within one of many statutory classes), you should then move ahead to evaluate 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 distinction between it and other products inside the related field.
A) Novelty: To acquire a utility patent, you must initially determine whether your invention is “novel”. In other words, is the invention new?Are you the first person to possess thought of it? As an example, if you decide to make application for a patent on the bulb, it seems like quite clear that you simply would not be entitled to a patent, since the bulb is not a whole new invention. The Patent Office, after receiving your application, would reject it based on the reality that Edison invented the lighting 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 known to the public several year before you decide to file a patent application for the invention).
To your invention to get novel with respect to other inventions on earth (prior art), it has to 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 were to invent a square light bulb, your invention would sometimes be novel when compared to the 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 show that your particular invention was not novel, they could be incorrect. However, if there exists an invention that is just like yours in every way your invention lacks novelty and is not patentable.
Typically, the novelty requirement is very simple to overcome, since any slight variation in shape, size, blend of elements, etc. will satisfy it. However, although the invention is novel, it could fail the other requirement mentioned above: “non-obviousness.” So, in the event that your invention overcomes the novelty requirement, usually do not celebrate yet — it is more difficult to fulfill the non-obviousness requirement.
B) Non-obviousness: As pointed out above, the novelty requirement is the easy obstacle to overcome in the search for a patent. Indeed, if novelty were the only requirement to fulfill, then just about everything conceivable could be patented as long as it differed slightly from all of previously developed conceptions. Accordingly, a more difficult, complex requirement should be satisfied following the novelty real question is met. This second requirement is referred to as “non-obviousness.”
The non-obviousness requirement states partly that although an invention as well as the related prior art is probably not “identical” (which means the invention is novel with regards to the prior art), the invention may nevertheless be unpatentable in the event the differences between it as well as the related prior art could be considered “obvious” to someone having ordinary skill in the area of the particular invention.
This is in fact 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 not — it really is more often than not quite evident whether any differences exist involving the invention and the prior art.About this point there is absolutely no room for subjective opinion. Regarding non-obviousness, however, there is a substantial amount 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 whether the invention is definitely obvious.
Some common examples of items that are certainly not usually considered significant, and thus which can be usually considered “obvious” include: the mere substitution of materials to create 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. Precisely what 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 may be used to stop you from obtaining a patent. Quite simply, it defines exactly those activities in which the PTO can cite against you in an attempt to prove that your particular invention is not in reality novel or demonstrate that your invention is obvious. These eight sections may be broken down into an organized and understandable format comprising 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 just before your “filing date” (thus showing that you might have waited too long to file for any patent).
A) Prior art which dates back just before your date of invention: It would seem to sound right that if prior art exists which dates before your date of invention, you must not be entitled to obtain a patent on that invention because you would not truly become the first inventor. Section 102(a) in the patent law specifically describes the things which can be used prior art when they occur before your date of invention:
1) Public knowledge in america: Any evidence that your invention was “known” by others, in the United States, before your date of invention. Even if there is no patent or written documentation showing that the invention was known in america, the PTO can still reject your patent application under section 102(a) as lacking novelty if they can show that your 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 attempting to patent in public areas in the United States, prior to your date of invention, can be held against your patent application by the PTO. This should make clear sense, since if someone else was publicly using the invention before you even conceived of this, you obviously should not be the initial and first inventor of this, and you do not need to receive a patent for it.
3) Patented in the United States or abroad: Any United States Of America or foreign patents which issued prior to your date of invention and which disclose your invention will likely 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 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 U . S . or abroad: Any United States Of America or foreignprinted publications (like books, newspapers, magazines, trade journals, etc.) which disclose your invention and were published before your date of invention will keep you from acquiring a patent.Again, the reasoning here is when your conception was described publicly in a printed publication, then you are not the first inventor (since someone else thought of it before you decide to) and also you are certainly not eligible to patent into it.
B)Prior art which extends back just before your filing date: As noted above, prior art was defined as everything known prior to your conception of the invention or everything proven to the public multiple year before your filing of any patent application. This means that in numerous circumstances, even though you were the first one to have conceived/invented something, you will end up unable to obtain a patent into it if it has entered the realm of public knowledge and over one year has passed between that time and your filing of a patent application. The goal of this rule would be to persuade folks to get patents on their inventions as quickly as possible or risk losing them forever. Section 102(b) from the patent law defines specifically those varieties of prior art which may be used against you as being a “one-year bar” the following:
1) Commercial activity in the usa: When the invention you wish to patent was sold or offered on the market in america several year before you decide to file a patent application, then you certainly are “barred” from ever getting a patent on your invention.
EXAMPLE: you conceive of the invention on January 1, 2008, and offer it available for sale on January 3, 2008, so as to raise some funds to get a patent. You have to file your patent application no later than January 3, 2009 (twelve months from the day you offered it on the market).If you file your patent application on January 4, 2009, for example, the PTO will reject your application for being barred as it was offered available for sale several year before your filing date.This too would be the case if someone apart from 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 simply kept it to yourself.Also assume that on February 1, 2008, someone else conceived of your invention and began selling it. This starts your one year clock running!Unless you file a patent on your invention by February 2, 2009, (1 year through the date one other person began selling it) then you also is going to be forever barred from getting a patent. Be aware that this provision from the law prevents you against getting a patent, although there is not any prior art dating back to to before your date of conception and you also truly are the very first inventor (thus satisfying 102(a)), simply because the invention was offered to the general public for more than 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 odds of obtaining a patent even when you are the first inventor and possess satisfied section 102(a).
2) Public use in america: When the invention you intend to Inventhelp was applied in the United States on your part or another multiple year before your filing of a 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 in a trade show or public gathering, on television, or elsewhere where most people has potential access.People use will not need to be one which specifically intends to make the public aware of the invention. Any use which is often potentially accessed from the public will suffice to begin the main one year clock running (but a secret use will usually not invoke the main one-year rule).
3) Printed publication in america or abroad: Any newspaper article, magazine article, trade paper, academic thesis or other printed publication on your part or by another person, accessible to the general public in america or abroad more than one year before your filing date, will keep you from getting a patent on your invention.Be aware that even a write-up published by you, regarding your own invention, will start the main one-year clock running.So, for instance, should you detailed your invention in a natmlt release and mailed it, this might start the one-year clock running.So too would usually the one-year clock start running for you if a complete stranger published a printed article about the topic of your invention.
4) Patented in the usa or abroad: If a United States or foreign patent covering your invention issued more than a year just before your filing date, you will end up barred from acquiring a patent. Compare this with all the previous section regarding United States Of America and foreign patents which states that, under 102(a) of the patent law, you might be prohibited from obtaining a patent if the filing date of another patent is sooner than your date of invention. Under 102(b) which we are discussing here, you cannot get yourself a patent with an invention which had been disclosed in another patent issued over this past year, even if your date of invention was ahead of the filing date of this patent.