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 particular concept for a limited time.
Typically, our government frowns upon any type of monopolization in commerce, due to 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 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 over the telephone industry.
Why, then, would the government permit a monopoly in the form of a patent? The government makes an exception to encourage inventors to come forward with their creations. In doing so, the government actually promotes advancements in science and technology.
First of all, it should be clear to you just how a patent acts as a "monopoly. "A patent permits the owner of the patent to prevent anyone else from producing the product or using the process covered by the patent. Think of Thomas Edison and his most famous patented invention, the light bulb. With his patent for the light bulb, Thomas Edison could prevent any other person or company from producing, using or selling light bulbs without his permission. Essentially, no one could compete with him in the light bulb business, and hence he possessed a monopoly.
However, in order to receive his monopoly, Thomas Edison had to give something in return. He needed to fully "disclose" his invention to the public.
To obtain a United States Patent, an inventor must fully disclose what the invention is, how it operates, and the best way known by the inventor to make it.It is this disclosure to the public which entitles the inventor to a monopoly.The logic for doing this is that by promising inventors a monopoly in return for their disclosures to the public, inventors will continually strive to develop new technologies and disclose them to the public. Providing them with the monopoly allows them to profit financially from the invention. Without this "tradeoff," there would be few incentives to develop new technologies, because without a patent monopoly an inventor's hard work would bring him no financial reward.Fearing that their invention would be stolen when they attempt to commercialize it, the inventor might never tell a soul about their invention, and the public would never benefit.
The grant of rights under a patent lasts for a limited period.Utility patents expire 20 years after they are filed.If this was not the case, and patent monopolies lasted indefinitely, there would be serious consequences. For example, if Thomas Edison still held an in-force patent for the light bulb, we would probably need to pay about $300 to buy a light bulb today.Without competition, there would 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 do just that after expiration of the Edison patent resulted in better quality, lower costing light bulbs.
II. Types of patents
There are essentially three types of patents which you should be aware of -- utility patents, design patents, and provisional patent applications.
A utility patent applies to inventions which have a "functional" aspect (in other words, the invention accomplishes a utilitarian result -- it actually "does" something).In other words, the thing which is different or "special" about the invention must be for a functional purpose.To be eligible for utility patent protection, an invention must also fall within at least one of the following "statutory categories" as required under 35 USC 101. Keep in mind that just about any physical, functional invention will fall into at least one of these categories, so you need not be concerned with which category best describes your invention.
A) Machine: think of a "machine" as something which accomplishes a task due to the interaction of its physical parts, such as a can opener, an automobile engine, a fax machine, etc.It is the combination and interconnection of these physical parts with which we are concerned and which are protected by the patent.
B) Article of manufacture: "articles of manufacture" should be thought of as things which accomplish a task just like a machine, but without the interaction of various physical parts.While articles of manufacture and machines may seem to be similar in many instances, you can distinguish the two by thinking of articles of manufacture as more simplistic things which typically 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 a "machine" since it is a simple device which does not rely on the interaction of various parts.
C) Process: a way of doing something through one or more steps, each step interacting in some way with a physical element, is known as a "process." A process can be a new method of manufacturing a known product or can even be a 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 such as 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 an object, rather than its "utility" or function, which is protected by a utility patent. In other words, if the invention is a useful object that has a novel shape or overall appearance, a design patent might provide the appropriate protection. To avoid infringement, a copier would have to produce a version that does not look "substantially similar to the ordinary observer."They cannot copy the shape and overall appearance without infringing the design patent.
A provisional patent application is a step toward obtaining a utility patent, where the invention might not yet be ready to obtain a utility patent. In other words, if it seems as though the invention cannot yet obtain a utility patent, the provisional application may be filed in the Patent Office to establish the inventor's priority to the invention.As the inventor continues to develop the invention and make further developments which allow a utility patent to be obtained, then the inventor can "convert" the provisional application to a full utility application. This later application is "given credit" for the date when the provisional application was first filed.
A provisional patent has several benefits:
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 product "patent pending." This has a time-proven tremendous commercial value, similar to the "as seen on TV" label which is applied to many products. A product bearing both of these phrases clearly possesses a commercial marketing advantage right from the start.
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.During that year, the inventor should try to commercialize the product and assess its potential. If the product appears commercially viable during that year, then the inventor is encouraged to convert the provisional application into a utility application.However, unlike a normal utility application which cannot be changed in any way, a provisional application may have additional material added to it to improve it upon its conversion within one year.Accordingly, any helpful information or tips which were obtained by the inventor or his marketing/advertising agents during commercialization of the product can be implemented and protected at that time.
C) Establishment of a filing date: The provisional patent application also provides the inventor with a crucial "filing date." In other words, the date that the provisional is filed becomes the invention's filing date, even for the later filed/converted utility patent.
III. Requirements for obtaining a utility patent
Once you are sure that your invention is a potential candidate for a utility patent (since it fits within one of the statutory classes), you should then move ahead to analyze whether your invention can satisfy two key requirements -- "novelty" and "unobviousness." These two requirements are essentially concerned with whether your invention is new, and if so, whether there is a substantial difference between it and similar products in the related field.
A) Novelty: To obtain a utility patent, you must initially determine whether your invention is "novel". In other words, is your invention new?Are you the first person to have thought of it? For example, if you were to apply for a patent on the light bulb, it seems quite clear that you would not be entitled to a patent, since the light bulb is not a new invention. The Patent Office, after receiving your application, would reject it based upon the fact that Edison invented the light bulb many years 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" prior to your conception of the invention or everything known to the public more than one year before you file a patent application for the invention).
For your invention to be novel with respect to other inventions in the world (prior art), it must simply be different in some 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 actually be novel compared to the Edison light bulb (since his was round/elliptical). If the patent office were to cite the round Edison light bulb against your square one as prior art to show that your invention was not novel, they would be incorrect. However, if there exists an invention which is identical to yours in every way your invention lacks novelty and is not patentable.
Typically, the novelty requirement is extremely simple to overcome, since any slight variation in shape, size, combination of elements, etc. will satisfy it. However, even though the invention is novel, it might fail the other requirement mentioned above: "non-obviousness." So, if you find that your invention overcomes the novelty requirement, do not celebrate yet -- it is more difficult to meet the non-obviousness requirement.
B) Non-obviousness: As mentioned above, the novelty requirement is the easy obstacle to overcome in the pursuit of a patent. Indeed, if novelty were the only requirement to satisfy, then almost anything conceivable could be patented as long as it differed slightly from all previously developed conceptions. Accordingly, a more difficult, complex requirement must be satisfied after the novelty question is met. This second requirement is called "non-obviousness."
The non-obviousness requirement states in part 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 the related prior art would be considered "obvious" to a person having ordinary skill in the field of the particular invention.
This is 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 not -- it is almost always quite evident whether any differences exist between your invention and the prior art.On this point there is no room for subjective opinion. Regarding non-obviousness, however, there is quite a bit of room for various opinions, since the requirement is inherently subjective: different people, including different Examiners at the Patent Office, will have different opinions regarding whether the invention is truly obvious.
Some common examples of things which 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 the type commonly found together; substituting one well-known component for another 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 types of prior art which can be used to prevent you from obtaining a patent. In other words, it defines exactly those things which the PTO can cite against you in an attempt to prove that your invention is not in fact novel or to show that your invention is obvious. These eight sections can be broken down into an organized and understandable format consisting of two main categories: prior art which is dated before your date of "invention" (thus showing that you are not the first inventor); and prior art which dates back prior to your "filing date" (thus showing that you might have waited too long to file for a patent).
A) Prior art which dates back prior to your date of invention: It would seem to make sense that if prior art exists which dates before your date of invention, you should not be entitled to obtain a patent on that invention since you would not truly be the first inventor. Section 102(a) of the patent law specifically describes the things which can be used as prior art if 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 United States, prior to your date of invention. Even if there is 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 if they can show that your invention was generally known 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 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 it, you obviously cannot be the original and first inventor of it, and you do not deserve to receive a patent for it.
3) Patented in the United States or abroad: Any United States or foreign patents which issued prior to your date of invention and which disclose your invention will be used against your patent application by the PTO. For 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 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 prevent you from obtaining 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 someone else thought of it before you) and you are not entitled to patent on it.
B)Prior art which dates back prior to your filing date: As noted above, prior art was defined as everything known prior to your conception of the invention or everything known to the public more than one year before your filing of a patent application. What this means is that in many circumstances, even though you were the first to have conceived/invented something, you will be unable to get a patent on it if it has entered the realm of public knowledge and more than one year has passed between that point and your filing of a patent application. The purpose of this rule is to encourage people to apply for patents on their inventions as soon as possible or risk losing them forever. Section 102(b) of the patent law defines specifically those types of prior art which can be used against you as a "one-year bar" as follows:
1) Commercial activity in the United States: If the invention you wish to patent was sold or offered for sale in the United States more than one year before you file a patent application, then you are "barred" from ever obtaining a patent on your invention.
EXAMPLE: you conceive of your invention on January 1, 2008, and offer 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 (one year from the day you offered it for sale).If you file your patent application on January 4, 2009, for example, the PTO will reject your application as being barred since it was offered for sale more than one year prior to your filing date.This also would be the case if someone 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 just 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!If you do not file a patent on your invention by February 2, 2009, (one year from the date the other person began selling it) then you also will be forever barred from obtaining a patent. Note that this provision of the law prevents you from getting a patent, even though there is no prior art dating back to before your date of conception and you are indeed the first inventor (thus satisfying 102(a)), simply because the invention was available to the 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 getting a patent even though you are the first inventor and have satisfied section 102(a).
2) Public use in the United States: If the invention you wish to patent was used in the United States by you or another more than one year before your filing of a patent application, then you are "barred" from ever obtaining a patent on your invention. Typical examples of public use are when you or someone else display and use the invention at a trade show or public gathering, on television, or anywhere else where the general public has potential access.The public use need not be one which specifically intends to make the public aware of the invention. Any use which can be potentially accessed by the public will suffice to begin the one year clock running (but a secret use will usually 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 other printed publication by you or by another person, accessible to the public in the United States or abroad more than one year before your filing date, will prevent you from obtaining a patent on your invention.Note that even an article published by you, about your own invention, will start the one-year clock running.So, for instance, if you detailed your invention in a press release and mailed it out, this would start the 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 United States or abroad: If a United States or foreign patent covering your invention issued over a year prior to your filing date, you will be barred from obtaining a patent. Compare this with the previous section regarding United States and foreign patents which states that, under 102(a) of the patent law, you are prohibited from getting a patent if the filing date of another patent is earlier than your date of invention. Under 102(b) which we are discussing here, you cannot get a patent on an invention which was disclosed in another patent issued over a year ago, even if your date of invention was before the filing date of that patent.
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