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 U . S . government expressly permits an individual or company to monopolize a particular 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. An excellent example is the forced break-up of Bell Telephone some years back into the many regional phone companies. The federal 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 us government permit a monopoly as a patent? The us government makes an exception to encourage inventors to come forward using their creations. By doing this, the us government actually promotes advancements in technology and science.
To begin with, it needs to be clear to you personally just the way a patent works as a “monopoly. “A patent permits the property owner of the Brainstorming Invention Ideas to avoid anyone else from producing the merchandise or making use of the process covered by the patent. Think of Thomas Edison and his awesome most famous patented invention, the light bulb. Together with his patent for the light bulb, Thomas Edison could prevent every other person or company from producing, using or selling light bulbs without his permission. Essentially, no one could compete with him inside the light bulb business, and therefore he possessed a monopoly.
However, in order to get his monopoly, Thomas Edison were required to give something in return. 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 most effective way known from the inventor to really make it.It is this disclosure to the public which entitles the inventor to a monopoly.The logic for doing this is the fact by promising inventors a monopoly in exchange for disclosures towards the public, inventors will continually make an effort to develop new technologies and disclose those to the general public. Providing all of them with the monopoly allows them to profit financially from the invention. Without it “tradeoff,” there would be few incentives to develop technologies, because with no 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 not benefit.
The grant of rights within patent can last for a small period.Utility patents expire twenty years when they are filed.If this had not been the case, and patent monopolies lasted indefinitely, there will be serious consequences. For instance, if Thomas Edison still held an in-force patent for that light bulb, we would probably need to pay about $300 to get a light bulb today.Without competition, there could be little incentive for Edison to boost upon his light bulb.Instead, when the Edison light bulb patent expired, everybody was free to manufacture light bulbs, and lots of companies did.The vigorous competition to do just that after expiration of the Free Invention Help ended in higher quality, lower costing light bulbs.
II. Types of patents
There are essentially three types of patents which you should know of — utility patents, design patents, and provisional patent applications. A utility patent applies to inventions that have a “functional” aspect (quite simply, the invention accomplishes a utilitarian result — it really “does” something).In other words, the thing that is different or “special” about the invention must be to get a functional purpose.To qualify for utility patent protection, an invention also must fall within a minumum of one in the following “statutory categories” as required under 35 USC 101. Stay in mind that just about any physical, functional invention will fall into a minumum of one of such categories, so that you need not be concerned with which category best describes your invention.
A) Machine: imagine a “machine” as something which accomplishes a task 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 these physical parts in which we have been concerned and which are protected by the patent.
B) Article of manufacture: “articles of manufacture” should be regarded as things which accomplish an activity just like a machine, but without the interaction of numerous physical parts.While articles of manufacture and machines may are most often similar in many instances, you can distinguish the two by thinking of articles of manufacture as more simplistic items that routinely have no moving parts. A paper clip, as an example is definitely an article of manufacture.It accomplishes a task (holding papers together), but is clearly not a “machine” as it is an easy device which does not rely on the interaction of numerous parts.
C) Process: an easy method of doing something through several steps, each step interacting somehow with a physical element, is actually a “process.” A process can be a new approach to manufacturing a known product or can even be a new use to get a known product. Board games are typically 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 can be patented as “compositions of matter.” Food items and recipes are often protected in this fashion.
A design patent protects the “ornamental appearance” of an object, instead of its “utility” or function, which can be protected by a utility patent. In other words, in the event the invention is really a useful object that has a novel shape or overall look, a design patent might provide the appropriate protection. To prevent infringement, a copier will have to generate a version that will not look “substantially similar to the ordinary observer.”They cannot copy the design and overall appearance without infringing the style patent.
A provisional patent application is really a step toward getting a utility patent, where invention might not yet anticipate to get a utility patent. In other words, if it seems like the invention cannot yet get yourself a utility patent, the provisional application may be filed in the Patent Office to build the inventor’s priority to the invention.Because the inventor will continue to develop the invention and make further developments which permit a utility patent to become obtained, then this inventor can “convert” the provisional application to your full utility application. This later application is “given credit” for that date once the provisional application was first filed.
A provisional patent has several advantages:
A) Patent Pending Status: By far the most well-known benefit from a Provisional Patent Application is it allows the inventor to right away begin marking the item “patent pending.” This has a time-proven tremendous commercial value, just like the “as seen in the media” label which can be put on many products. An item bearing these two phrases clearly possesses a commercial marketing advantage right in the first place.
B) Capability to increase the invention: After filing the provisional application, the inventor has twelve months to “convert” the provisional right into a “full blown” utility application.During that year, the inventor need to try to commercialize the merchandise and assess its potential. If the product appears commercially viable in that year, then your inventor is asked to convert the provisional application in to a utility application.However, unlike a normal utility application which should not be changed in any respect, a provisional application may have additional material put into it to boost it upon its conversion within twelve months.Accordingly, any helpful information or tips that were obtained by the inventor or his marketing/advertising agents during commercialization from the product can be implemented and guarded during that time.
C) Establishment of the filing date: The provisional patent application offers the inventor using 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.
III. Requirements for getting a utility patent. When you are certain your invention is really a potential candidate for a utility patent (since it fits within one of many statutory classes), you should then move ahead to analyze whether your invention can satisfy two key requirements — “novelty” and “unobviousness.” Those two requirements are essentially focused on whether your invention is new, and when so, whether there exists a substantial distinction between it and similar products inside the related field.
A) Novelty: To acquire a utility patent, you must initially determine whether your invention is “novel”. Put simply, is your invention new?Have you been the very first person to have considered it? For example, if you were to apply for a patent on the light bulb, it seems quite clear that you would not really entitled to a patent, since the light bulb will not be a new invention. The Patent Office, after receiving your application, would reject it based on 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 from the invention or everything recognized to people more than one year before you file a patent application for the invention).
For your invention to get novel with regards to other inventions on the planet (prior art), it must just 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 actually be novel when compared to Edison light bulb (since his was round/elliptical). When the patent office were to cite the round Edison light bulb against your square one as prior art to show that your particular invention had not been novel, they might be incorrect. However, if there exists an invention which can be just like yours in every single way your invention lacks novelty and is also not patentable.
Typically, the novelty requirement is very simple to overcome, since any slight variation in good shape, size, combination of elements, etc. will satisfy it. However, even although the invention is novel, it might fail the other requirement stated earlier: “non-obviousness.” So, if you find that your invention overcomes the novelty requirement, do not celebrate yet — it is actually more difficult to satisfy the non-obviousness requirement.
B) Non-obviousness: As stated before, the novelty requirement will be the easy obstacle to get over inside the quest for Patent Companies. Indeed, if novelty were the only real requirement to satisfy, then just about anything conceivable might be patented as long since it differed slightly from all of previously developed conceptions. Accordingly, a much more difficult, complex requirement should be satisfied right after the novelty real question is met. This second requirement is known as “non-obviousness.”
The non-obviousness requirement states to some extent that although an invention and the related prior art might not really “identical” (which means that 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 someone having ordinary skill in the field of the actual invention.
This can be 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 — it is typically quite evident whether any differences exist in between your invention as well as the prior art.About this point there is absolutely no room for subjective opinion. Regarding non-obviousness, however, there is a reasonably bit of room for various opinions, since the requirement is inherently subjective: each person, including different Examiners on the Patent Office, could have different opinions regarding if the invention is really obvious.
Some common examples of things which are certainly not usually considered significant, and so that 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 through 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 keep you from getting a patent. In other words, it defines exactly those ideas in which the PTO can cite against you so as to prove that your invention will not be actually 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 that is dated before your date of “invention” (thus showing that you will be not the very first inventor); and prior art which dates back before your “filing date” (thus showing which you might have waited too long to file for any patent).
A) Prior art which dates back before your date of invention: It would appear 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 since you would not truly function as the first inventor. Section 102(a) of the patent law specifically describes the things which can be used as prior art should they occur before your date of invention:
1) Public knowledge in the usa: Any evidence that your invention was “known” by others, in the usa, just before your date of invention. Even when there is no patent or written documentation showing that your particular invention was known in america, the PTO may still reject your patent application under section 102(a) as lacking novelty when they can show that your invention was generally known to the public prior to your date of invention.
2) Public use in america: Use by others from the invention you are trying to patent in public in the United States, prior to your date of invention, can take place against your patent application by the PTO. This will make clear sense, since if a person else was publicly using the invention before you even conceived from it, you obviously should not be the initial and first inventor from it, and you may not need to get a patent for this.
3) Patented in the usa or abroad: Any United States Of America or foreign patents which issued prior to your date of invention and which disclose your invention is going to be used against your patent application through 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 U . S . or foreignprinted publications (like books, newspapers, magazines, trade journals, etc.) which disclose your invention and were published before your date of invention will prevent you from getting a patent.Again, the reasoning here is when your conception was described publicly in a printed publication, then you definitely are certainly not the first inventor (since somebody else considered it before you) and you also are certainly not entitled to 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 proven to the public multiple year before your filing of the patent application. This means that in lots of circumstances, even though you were the first to have conceived/invented something, you will end up unable to obtain a patent onto it if this has entered the realm of public knowledge and more than one year has gone by between that point as well as your filing of any patent application. The goal of this rule is to persuade folks to try to get patents on the inventions as quickly as possible or risk losing them forever. Section 102(b) of the patent law defines specifically those varieties of prior art which can be utilized against you being a “one-year bar” as follows:
1) Commercial activity in the United States: In the event the invention you wish to patent was sold or offered available for sale in the usa multiple year before you 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 present it on the market on January 3, 2008, in an attempt to raise some funds to try to get a patent. You must file your patent application no later than January 3, 2009 (one year through the day you offered it available for sale).In the event you file your patent application on January 4, 2009, as an example, the PTO will reject your application to be barred because it was offered on the market more than one year prior to your filing date.This also would be the case if a person besides yourself begins selling your invention. Assume still which you 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 think that on February 1, 2008, somebody else conceived of the invention and began selling it. This starts your twelve months clock running!If you do not file a patent on the invention by February 2, 2009, (twelve months through the date one other person began selling it) then you certainly also will likely be forever barred from obtaining a patent. Note that the provision in the law prevents you from obtaining a patent, even though there is absolutely no prior art dating back to before your date of conception and also you are indeed the first inventor (thus satisfying 102(a)), mainly because the invention was offered to the general public for more than one year before your filing date due to the other person’s sale.Accordingly, “section 102(b) one-year bars” can ruin your odds of getting a patent even though you happen to be first inventor and also have satisfied section 102(a).
2) Public use in the United States: If the invention you wish to patent was applied in america on your part or some other several year before your filing of the patent application, then you definitely are “barred” from ever obtaining a patent on the invention. Typical types of public use are when you or another person display and utilize the invention with a trade show or public gathering, on tv, or somewhere else where general public has potential access.The general public use will not need to be one which specifically plans to make the public mindful of the invention. Any use which can be potentially accessed through the public will suffice to begin 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 other printed publication on your part or by another individual, offered to the general public in america or abroad more than one year before your filing date, will keep you from obtaining a patent on your own invention.Note that even a post published by you, regarding 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 would start usually the one-year clock running.So too would the one-year clock start running for you in case a complete stranger published a printed article about the topic of your invention.
4) Patented in the United States or abroad: In case a U . S . or foreign patent covering your invention issued over a year before your filing date, you will be barred from obtaining a patent. Compare this using 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 when the filing date of some other patent is earlier than your date of invention. Under 102(b) which we have been discussing here, you can not get yourself a patent upon an invention that was disclosed in another patent issued over a year ago, even in case your date of invention was before the filing date of the patent.