What is a patent? A United States Of America 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 sort 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 years ago into the many regional phone companies. The us 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 by means of a patent? The us government makes an exception to encourage inventors ahead forward with their creations. By doing this, the government actually promotes advancements in technology and science.
To start with, it should be clear for you just just how a patent acts as a “monopoly. “A patent permits the homeowner of the Inventhelp Inventors to prevent someone else from producing the product or making use of the process included in the patent. Consider Thomas Edison and his awesome most popular patented invention, the light bulb. Along with his patent for the light bulb, Thomas Edison could prevent some other person or company from producing, using or selling light bulbs without his permission. Essentially, no one could contend with him inside the light bulb business, and hence he possessed a monopoly.
However, in order to obtain his monopoly, Thomas Edison had to give something in exchange. He necessary to fully “disclose” his invention for the public. To have a U . S . Patent, an inventor must fully disclose what the invention is, the actual way it operates, and the most effective way known by the inventor to make it.It is this disclosure towards the public which entitles the inventor to your monopoly.The logic for accomplishing this is the fact that by promising inventors a monopoly in exchange for his or her disclosures towards the public, inventors will continually make an effort 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 could be few incentives to produce technologies, because with no patent monopoly an inventor’s hard work will bring him no financial reward.Fearing that their invention will be stolen whenever 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 a patent lasts for a limited period.Utility patents expire twenty years when they are filed.If this type of was not the case, and patent monopolies lasted indefinitely, there will be serious consequences. For instance, if Thomas Edison still held an in-force patent for your light bulb, we may probably must pay about $300 to get a light bulb today.Without competition, there would be little incentive for Edison to boost upon his light bulb.Instead, after the Edison light bulb patent expired, everyone was free to manufacture light bulbs, and many companies did.The vigorous competition to accomplish just that after expiration in the How To Patent A Product ended in better 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 pertains to inventions which have a “functional” aspect (put simply, the invention accomplishes a utilitarian result — it actually “does” something).Quite simply, one thing that is different or “special” about the invention has to be for a functional purpose.To be eligible for utility patent protection, an invention must also fall within a minumum of one in 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 those categories, so you need not be concerned with which category best describes your invention.
A) Machine: imagine a “machine” as something which accomplishes a job due to the interaction of its physical parts, for instance a can opener, an automobile engine, a fax machine, etc.It will be the combination and interconnection of such physical parts with which we have been concerned and that are protected by the patent.
B) Article of manufacture: “articles of manufacture” ought to be looked at as items that accomplish a task just like a machine, but without the interaction of various physical parts.While articles of manufacture and machines may appear to be similar in many instances, you can distinguish the two by considering articles of manufacture as more simplistic things which typically have no moving parts. A paper clip, as an example is definitely an article of manufacture.It accomplishes an activity (holding papers together), but is clearly not a “machine” since it is a basic device which does not rely on the interaction of various parts.
C) Process: an easy method of performing something through a number of steps, each step interacting somehow using a physical element, is regarded as a “process.” A procedure can be a new approach to manufacturing a known product or can even be considered a new use to get a known product. Board games are generally protected as a process.
D) Composition of matter: typically chemical compositions including 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 the object, rather than its “utility” or function, that is protected by way of a utility patent. Quite simply, if the invention is a useful object that has a novel shape or overall look, a design patent might provide the appropriate protection. In order to avoid infringement, a copier would need to create a version that fails to look “substantially like the ordinary observer.”They cannot copy the form and overall look without infringing the design patent.
A provisional patent application is really a step toward getting a utility patent, where the invention might not yet be ready to obtain a utility patent. Put simply, when it seems as though the invention cannot yet get yourself a utility patent, the provisional application may be filed within the Patent Office to determine the inventor’s priority for the invention.As the inventor consistently develop the invention and make further developments that allow a utility patent to be obtained, then your inventor can “convert” the provisional application to your full utility application. This later application is “given credit” for your date when the provisional application was first filed.
A provisional patent has several advantages:
A) Patent Pending Status: Probably the most well-known advantage 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, just like the “as seen on television” label that is put on many products. An item bearing these two phrases clearly possesses an industrial marketing advantage right from the start.
B) Capability to enhance 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 need to try to commercialize the item and assess its potential. When the product appears commercially viable during that year, then this inventor is encouraged to convert the provisional application into a utility application.However, unlike an ordinary utility application which cannot be changed by any means, a provisional application may have additional material included in it to boost it upon its conversion within twelve months.Accordingly, any helpful tips or tips that had been obtained by the inventor or his marketing/advertising agents during commercialization of the product can be implemented and protected during that time.
C) Establishment of the filing date: The provisional patent application also provides the inventor using a crucial “filing date.” In other words, the date that this provisional is filed becomes the invention’s filing date, even for that later filed/converted utility patent.
III. Requirements for obtaining a utility patent. Once you are sure that your invention is actually a potential candidate for a utility patent (because it fits within among the statutory classes), you need to 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 if so, whether you will find a substantial difference between it and similar products within the related field.
A) Novelty: To have a utility patent, you need to initially decide if your invention is “novel”. Put simply, is the invention new?Are you currently the initial person to get thought of it? For example, if you decide 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 brand new invention. The Patent Office, after receiving the application, would reject it based on the reality 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 proven to the general public several year before you file a patent application for that invention).
To your invention to get novel regarding other inventions in the world (prior art), it has to 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 decide to invent a square light bulb, your invention would actually be novel compared to the Edison light bulb (since his was round/elliptical). In the event the patent office would cite the round Edison light bulb against your square one as prior art to show that your invention was not novel, they might be incorrect. However, if there exists an invention that is identical to yours in every single way your invention lacks novelty and is also not patentable.
Typically, the novelty requirement is very easy to overcome, since any slight variation in shape, size, blend of elements, etc. will satisfy it. However, even though the invention is novel, it might fail another requirement mentioned above: “non-obviousness.” So, in the event that your invention overcomes the novelty requirement, do not celebrate yet — it really is harder to fulfill the non-obviousness requirement.
B) Non-obviousness: As stated before, the novelty requirement will be the easy obstacle to overcome inside the quest for Inventions Ideas. Indeed, if novelty were the sole requirement to satisfy, then almost anything conceivable could be patented as long as it differed slightly from all previously developed conceptions. Accordingly, a much more difficult, complex requirement must be satisfied after the novelty real question is met. This second requirement is referred to as “non-obviousness.”
The non-obviousness requirement states to some extent that although an invention and the related prior art might not “identical” (meaning that the invention is novel with regards to the prior art), the invention may nevertheless be unpatentable when the differences between it and also the related prior art could be considered “obvious” to a person having ordinary skill in the field of the actual invention.
This is in fact the Patent and Trademark Office’s means of subjectively judging the “quality” of an invention. Clearly the PTO has no latitude in judging whether your invention is novel or not — it really 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 many different opinions, since the requirement is inherently subjective: differing people, including different Examiners at the Patent Office, may have different opinions regarding if the invention is really obvious.
Some common types of things that are certainly not usually considered significant, and so that are usually considered “obvious” include: the mere substitution of materials to create something lighter in weight; changing the dimensions or color; combining pieces of what type commonly found together; substituting one well-known component for an additional similar component, etc.
IV. What exactly 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 prevent you from getting a patent. Put simply, it defines exactly those activities that the PTO can cite against you in an attempt to prove that your particular invention will not be actually novel or to show that your particular invention is obvious. These eight sections can be broken down into an organized and understandable format consisting of two main categories: prior art that is dated before your date of “invention” (thus showing that you are not the initial 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 before your date of invention: It would seem to sound right that in case prior art exists which dates before your date of invention, you must not be entitled to acquire a patent on that invention because you would not truly be the first inventor. Section 102(a) from the patent law specifically describes those things which can be utilized as prior art should 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 when there is no patent or written documentation showing that your particular 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 known 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 in america, just before your date of invention, can take place against your patent application from the PTO. This will make clear sense, since if somebody else was publicly using the invention before you even conceived of this, you obviously cannot be the first and first inventor of it, and you may not should get a patent for this.
3) Patented in america or abroad: Any United States or foreign patents which issued just before your date of invention and which disclose your invention will be used against your patent application by the PTO. For instance, believe that you invent a lobster de-shelling tool on June 1, 2007.The PTO can use any patents which disclose the same lobster de-shelling tool, U . S . 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 (like books, newspapers, magazines, trade journals, etc.) which disclose your invention and were published just before your date of invention will prevent you from getting a patent.Again, the reasoning here is that if your conception was described publicly in a printed publication, then you definitely are not the initial inventor (since someone else thought of it before you) and you also usually are not eligible to patent into it.
B)Prior art which dates back prior to your filing date: As noted above, prior art was defined as everything known just before your conception from the invention or everything recognized to the public more than one year before your filing of any patent application. What this means is that in many circumstances, even even though you were the first one to have conceived/invented something, you will end up unable to obtain a patent on it if it has entered the world of public knowledge and over one year has gone by between that point as well as your filing of a patent application. The objective of this rule is always to encourage people to get patents on the 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 can be utilized against you being a “one-year bar” the following:
1) Commercial activity in the United States: If the invention you want to patent was sold or offered available for sale in the United States several year before you file a patent application, then you definitely are “barred” from ever getting a patent on your own invention.
EXAMPLE: you conceive of your invention on January 1, 2008, and present it on the market on January 3, 2008, in an attempt to raise some funds to apply for a patent. You have to file your patent application no later than January 3, 2009 (one year from the 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 your application as being barred since it was offered for sale more than one year just before your filing date.This too is the case if someone other than yourself begins selling your invention. Assume still that you simply conceived your invention on January 1, 2008, but did not 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 twelve months clock running!If you do not file a patent on the invention by February 2, 2009, (1 year from the date one other person began selling it) then you definitely also is going to be forever barred from obtaining a patent. Note that this provision from the law prevents you from acquiring a patent, even though there is no prior art dating back to before your date of conception and you also are indeed the first inventor (thus satisfying 102(a)), for the reason that the invention was available to the public for 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 getting a patent even though you happen to be first inventor and have satisfied section 102(a).
2) Public use in the usa: When the invention you intend to patent was utilized in america on your part or another multiple year before your filing of any patent application, then you definitely are “barred” from ever getting a patent on the invention. Typical types of public use are when you or another person display and make use of the invention at a trade show or public gathering, on television, or elsewhere where the general public has potential access.The public use will not need to be the one that specifically plans to create the public mindful of the invention. Any use which can be potentially accessed from the public will suffice to start the one year clock running (but a secret use will usually not invoke usually the one-year rule).
3) Printed publication in the usa or abroad: Any newspaper article, magazine article, trade paper, academic thesis or some other printed publication on your part or by someone else, available to the general public in america or abroad more than one year before your filing date, will prevent you from obtaining a patent on the invention.Note that even an article authored by you, concerning your own invention, will start usually the one-year clock running.So, as an example, in the event you detailed your invention in a press ndefzr and mailed it out, this would start the main one-year clock running.So too would the one-year clock start running to suit your needs if a complete stranger published a printed article about the topic of your invention.
4) Patented in america or abroad: When a United States Of America or foreign patent covering your invention issued more than a year just before your filing date, you may be barred from getting a patent. Compare this with all the previous section regarding United States and foreign patents which states that, under 102(a) of the patent law, you are prohibited from acquiring a patent in the event the filing date of some other patent is sooner than your date of invention. Under 102(b) which our company is discussing here, you are unable to 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 this patent.