What is a patent? A United States Patent is actually a “grant of rights” for a limited period. In layman’s terms, it is a contract in which the United States Of America government expressly permits an individual or company to monopolize a specific concept for a very limited time.
Typically, our government frowns upon any sort of monopolization in commerce, as a result of belief that monopolization hinders free trade and competition, degrading our economy. A great example is the forced break-up of Bell Telephone some years back to 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 within the telephone industry.
Why, then, would the us government permit a monopoly by means of Invention Website? The federal government makes an exception to encourage inventors to come forward with their creations. By doing this, the us government actually promotes advancements in science and technology.
First of all, it should be clear to you personally exactly how a patent behaves as a “monopoly. “A patent permits the homeowner in the patent to stop anyone else from producing the product or utilizing the process included in the patent. Consider Thomas Edison and his awesome most well-known 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, nobody could contend with him inside the light business, so therefore he possessed a monopoly.
However, in order to receive his monopoly, Thomas Edison were required to give something in turn. He necessary to fully “disclose” his invention for the public.
To have a United States Patent, an inventor must fully disclose just what the invention is, the way it operates, and the best way known from the inventor to make it.It is actually this disclosure for the public which entitles the inventor to a monopoly.The logic for accomplishing this is the fact that by promising inventors a monopoly in return for disclosures to the public, inventors will continually make an effort to develop new technologies and disclose them to people. Providing these 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 having a patent monopoly an inventor’s work will bring him no financial reward.Fearing their invention could be stolen once they make an effort to commercialize it, the inventor might never tell a soul with regards to their invention, and also the public would not benefit.
The grant of rights within a patent lasts for a restricted period.Utility patents expire 20 years once they are filed.If this was untrue, and patent monopolies lasted indefinitely, there will be serious consequences. As an example, if Thomas Edison still held an in-force patent for that light bulb, we would probably must pay about $300 to get 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, everybody was liberated to manufacture lights, and several companies did.The vigorous competition to do that after expiration of the Edison patent ended in higher quality, lower costing light bulbs.
Kinds of patents. There are essentially three kinds of patents which you should be aware of — utility patents, design patents, and provisional patent applications. A utility patent applies to inventions which may have a “functional” aspect (in other words, the invention accomplishes a utilitarian result — it genuinely “does” something).In other words, the thing that is different or “special” concerning 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. Remember that almost any physical, functional invention will fall into at least one of these categories, so you will not need to be concerned with which category best describes your invention.
A) Machine: think of a “machine” as something which accomplishes a task as a result of interaction of its physical parts, like a can opener, a car engine, a fax machine, etc.It will be the combination and interconnection of such physical parts with which we have been concerned and which are protected through the Invention Patent.
B) Article of manufacture: “articles of manufacture” needs to be thought of as things that accomplish a task similar to a machine, but with no interaction of numerous physical parts.While articles of manufacture and machines may appear to be similar in many cases, you are able to distinguish the two by thinking about articles of manufacture as increasing numbers of simplistic things that normally have no moving parts. A paper clip, for example is an article of manufacture.It accomplishes a job (holding papers together), but is clearly not really a “machine” since it is a basic device which does not rely on the interaction of numerous parts.
C) Process: a means of doing something through one or more steps, each step interacting in some way having a physical element, is regarded as a “process.” A process can be a new way of manufacturing a known product or could even be a brand new use for any known product. Board games are generally protected as a process.
D) Composition of matter: typically chemical compositions including pharmaceuticals, mixtures, or compounds like soap, concrete, paint, plastic, and the like could be patented as “compositions of matter.” Food items and recipes tend to be protected in this way.
A design patent protects the “ornamental appearance” of the object, as opposed to its “utility” or function, which is protected with a utility patent. In other words, in the event the invention is actually a useful object which has a novel shape or overall look, a design patent might provide the appropriate protection. In order to avoid infringement, a copier would have to create a version that does not look “substantially similar to the ordinary observer.”They cannot copy the form and overall look without infringing the style patent.
A provisional patent application is a step toward obtaining a utility patent, where invention might not exactly yet anticipate to get yourself a utility patent. Put simply, when it seems like the invention cannot yet obtain a utility patent, the provisional application could be filed within the Patent Office to determine the inventor’s priority to the invention.Because the inventor will continue to develop the invention making further developments that allow a utility patent to become obtained, then your inventor can “convert” the provisional application to a full utility application. This later application is “given credit” for the date if the provisional application was filed.
A provisional patent has several benefits:
A) Patent Pending Status: By far the most well-known advantage of a Provisional Patent Application is that it allows the inventor to instantly begin marking the merchandise “patent pending.” This has an occasion-proven tremendous commercial value, just like the “as seen in the media” label that is placed on many products. A product or service bearing both these phrases clearly possesses a professional marketing advantage from the very beginning.
B) Capability 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 item and assess its potential. If the product appears commercially viable in that year, then this inventor is encouraged to convert the provisional application in to a utility application.However, unlike a typical utility application which cannot be changed in any way, a provisional application may have additional material added to it to boost it upon its conversion within one year.Accordingly, any helpful information or tips that were obtained from the inventor or his marketing/advertising agents during commercialization of the product could be implemented and protected during that time.
C) Establishment of any filing date: The provisional patent application also provides the inventor having 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.
Requirements for obtaining a utility patent. When you are certain your invention is really a potential candidate to get a utility patent (since it fits within one of many 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 acquire a utility patent, you need to initially determine whether your invention is “novel”. In other words, can be your invention new?Are you currently the very first person to get thought of it? As an example, if you were to obtain a patent on the light bulb, it seems quite clear which you would not really entitled to a patent, considering that the light will not be a whole new invention. The Patent Office, after receiving your application, would reject it based on the truth that Edison invented the sunshine bulb a long time ago. In rejecting your patent application, the Patent Office would actually cite the Edison light patent against you as relevant “prior art” (prior art is everything “known” just before your conception in the invention or everything known to the public several year prior to deciding to file a patent application for the invention).
For the invention to get novel with regards to other inventions in the world (prior art), it must 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 sometimes be novel when compared to the Edison light (since his was round/elliptical). In the event the patent office would cite the round Edison light against your square one as prior art to exhibit that your invention was not novel, they would be incorrect. However, if there exists an invention which can be identical to yours in every single way your invention lacks novelty and it is 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, however the invention is novel, it could fail the other requirement mentioned previously: “non-obviousness.” So, in the event that your invention overcomes the novelty requirement, tend not to celebrate yet — it really is harder to satisfy the non-obviousness requirement.
B) Non-obviousness: As stated before, the novelty requirement is definitely the easy obstacle to get over within the pursuit of a patent. Indeed, if novelty were the only real requirement to fulfill, then almost anything conceivable could be patented as long as it differed slightly coming from all previously developed conceptions. Accordingly, a far more difficult, complex requirement must be satisfied following 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 the related prior art might not be “identical” (which means the invention is novel with respect to the prior art), the invention may nevertheless be unpatentable if the differences between it and also the related prior art would be considered “obvious” to a person having ordinary skill in the field of the actual invention.
This can be in fact the Patent and Trademark Office’s means of subjectively judging the “quality” of the invention. Clearly the PTO has no latitude in judging whether your invention is novel or not — it is more often than not quite evident whether any differences exist in between your invention and the prior art.On this point there is not any room for subjective opinion. Regarding non-obviousness, however, there is a substantial amount of room for various opinions, considering that the requirement is inherently subjective: each person, including different Examiners at the Patent Office, will have different opinions regarding whether or not the invention is really obvious.
Some common types of items that are certainly not usually considered significant, and thus which can be usually considered “obvious” include: the mere substitution of materials to help make something much lighter; changing the size or color; combining items of the type commonly found together; substituting one well known component for another 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 could be used to keep you from obtaining a patent. Quite simply, it defines exactly those things that the PTO can cite against you in an effort to prove that the invention is not really actually novel or to demonstrate that your invention is obvious. These eight sections may be split up into an organized 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 first inventor); and prior art which extends back just before your “filing date” (thus showing which you may have waited very long to submit to get a patent).
A) Prior art which extends back just before your date of invention: It would appear to seem sensible that in case prior art exists which dates before your date of invention, you must not be entitled to obtain a patent on that invention as you would not truly be the first inventor. Section 102(a) from the patent law specifically describes the points which can be used prior art should 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 usa, prior to your date of invention. Even when there is no patent or written documentation showing that the invention was known in america, the PTO may still reject your patent application under section 102(a) as lacking novelty if they can show that your invention was generally recognized to the public prior to your date of invention.
2) Public use in the United States: Use by others in the invention you are attempting to patent in public in america, just before your date of invention, can be held against your patent application by the PTO. This ought to make clear sense, since if somebody else was publicly making use of the invention even before you conceived of this, you obviously can not be the original and first inventor of it, and you do not need to get a patent for this.
3) Patented in the usa or abroad: Any U . S . or foreign patents which issued before your date of invention and which disclose your invention will be used against your patent application through the PTO. As an 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, 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 U . S . or foreignprinted publications (such as books, newspapers, magazines, trade journals, etc.) which disclose your invention and were published before your date of invention will keep you from getting a patent.Again, the reasoning here is that if your conception was described publicly in a printed publication, then you certainly are certainly not the initial inventor (since another person considered it before you decide to) and also you are not eligible for patent on it.
B)Prior art which extends back prior to your filing date: As noted above, prior art was considered everything known before your conception of the invention or everything known to people several year before your filing of any patent application. Therefore that in lots of circumstances, even though you were the first one to have conceived/invented something, you may be unable to obtain a patent onto it if it has entered the realm of public knowledge and more than twelve months has passed between that time as well as your filing of a patent application. The goal of this rule is to persuade folks to try to get patents on their inventions as soon as possible or risk losing them forever. Section 102(b) in the patent law defines specifically those types of prior art which may be used against you as a “one-year bar” as follows:
1) Commercial activity in america: If the invention you wish to patent was sold or offered on the market in the United States more than one year before you decide to file a patent application, then you are “barred” from ever acquiring a patent on your own invention.
EXAMPLE: you conceive of your own invention on January 1, 2008, and provide it available for sale on January 3, 2008, so as to raise some funds to try to get a patent. You need to file your patent application no later than January 3, 2009 (one year from your day you offered it on the market).If you file your patent application on January 4, 2009, for example, the PTO will reject the application for being barred as it was offered for sale multiple year before your filing date.This also would be the case if somebody 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 on the market publicly.You simply kept it to yourself.Also assume that on February 1, 2008, another person conceived of your invention and began selling it. This starts your one year clock running!Should you not file a patent on your own invention by February 2, 2009, (twelve months from the date the other person began selling it) then you certainly also will likely be forever barred from getting a patent. Be aware that this provision of the law prevents you against getting a patent, even though there is no prior art dating back to to before your date of conception and you truly are the initial inventor (thus satisfying 102(a)), for the reason that the invention was accessible to people for more than one year before your filing date due to another person’s sale.Accordingly, “section 102(b) one-year bars” can ruin your chances of getting a patent even if you are the first inventor and have satisfied section 102(a).
2) Public use in the usa: If the invention you intend to Inventhelp Company Headquarters was applied in america on your part or any other more than one 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 whenever you or someone else display and use the invention with a trade event or public gathering, on tv, or elsewhere where the general public has potential access.People use need not be the one that specifically promises to have the public conscious of the invention. Any use which is often potentially accessed from the public will suffice to begin with usually the one year clock running (but a secret use will often 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 any other printed publication by you or by another individual, accessible to the general public in the United States or abroad several year before your filing date, will stop you from obtaining a patent on the invention.Note that even an article published by you, concerning your own invention, begins usually the one-year clock running.So, for example, should you detailed your invention in a natmlt release and mailed it all out, this could start the main one-year clock running.So too would the main one-year clock start running for you personally when a complete stranger published a printed article about the subject of your invention.
4) Patented in the usa or abroad: In case a United States Of America or foreign patent covering your invention issued over a year before your filing date, you may be barred from acquiring a patent. Compare this using the previous section regarding U . S . and foreign patents which states that, under 102(a) in the patent law, you are prohibited from obtaining a patent if the filing date of some other patent is sooner than your date of invention. Under 102(b) which our company is discussing here, you can not get yourself a patent upon an invention that was disclosed in another patent issued over last year, even though your date of invention was ahead of the filing date of the patent.