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 a contract in which the U . S . government expressly permits an individual or company to monopolize a particular concept for a short 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 great example is definitely the forced break-up of Bell Telephone some in the past in 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 federal government permit a monopoly in the form of Free Invention Help? 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 science and technology.
First of all, it ought to be clear to you precisely how a patent acts as a “monopoly. “A patent permits the owner of the patent to stop someone else from producing the product or using the process covered by the patent. Consider Thomas Edison and his awesome most popular patented invention, the lighting bulb. With his patent for that light, Thomas Edison could prevent any other person or company from producing, using or selling lights without his permission. Essentially, no person could compete with him within the light bulb business, so therefore he possessed a monopoly.
However, to be able to receive his monopoly, Thomas Edison needed to give something in turn. He needed to fully “disclose” his invention towards the public.
To have a U . S . Patent, an inventor must fully disclose just what the invention is, the actual way it operates, and the easiest way known through the inventor making it.It really is this disclosure for the public which entitles the inventor to your monopoly.The logic for accomplishing this is the fact by promising inventors a monopoly in turn for disclosures for the public, inventors will continually strive to develop new technologies and disclose these to people. Providing them with the monopoly allows them to profit financially through the invention. Without this “tradeoff,” there will be few incentives to produce new technologies, because without a patent monopoly an inventor’s hard work will bring him no financial reward.Fearing that their invention could be stolen whenever they make an effort to commercialize it, the inventor might never tell a soul with regards to their invention, as well as the public would not benefit.
The grant of rights within a patent will last for a limited period.Utility patents expire two decades once they are filed.If the was not the case, and patent monopolies lasted indefinitely, there would be serious consequences. For instance, if Thomas Edison still held an in-force patent for that light bulb, we might probably need to pay about $300 to buy an easy bulb today.Without competition, there will be little incentive for Edison to improve upon his light bulb.Instead, once the Edison light bulb patent expired, everyone was free to manufacture bulbs, and several companies did.The vigorous competition to accomplish exactly that after expiration of the Edison patent resulted in better quality, lower costing lights.
Varieties of patents. You can find essentially three types of patents which you ought to 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 actually “does” something).Put simply, the thing which is different or “special” about the invention should be for any functional purpose.To be eligible for utility patent protection, an invention should also fall within at least one from the following “statutory categories” as required under 35 USC 101. Take into account that just about any physical, functional invention will fall under at least one of those categories, which means you do not need to be concerned with which category best describes your invention.
A) Machine: think of a “machine” as a thing that accomplishes an activity due to the interaction of their physical parts, such as a can opener, a car engine, a fax machine, etc.This is the combination and interconnection of these physical parts in which we are concerned and that are protected by the Inventhelp Commercials.
B) Article of manufacture: “articles of manufacture” should be regarded as things that accomplish a task just like a machine, but minus the interaction of numerous physical parts.While articles of manufacture and machines may appear to be similar in many instances, it is possible to distinguish the two by thinking about articles of manufacture as more simplistic things that routinely have no moving parts. A paper clip, for example is surely an article of manufacture.It accomplishes a job (holding papers together), but is clearly not a “machine” because it is a simple device which will not rely on the interaction of varied parts.
C) Process: a means of accomplishing something through a number of steps, each step interacting in some manner with a physical element, is actually a “process.” A process could be a new approach to manufacturing a known product or can also be a whole new use for a known product. Board games are typically protected as being a process.
D) Composition of matter: typically chemical compositions like pharmaceuticals, mixtures, or compounds including soap, concrete, paint, plastic, and so forth can be patented as “compositions of matter.” Food items and recipes are frequently protected in this way.
A design patent protects the “ornamental appearance” of the object, instead of its “utility” or function, that is protected with a utility patent. In other words, if the invention is actually a useful object that includes a novel shape or overall look, a design patent might provide the appropriate protection. To prevent infringement, a copier would have to create a version that does not look “substantially just like the ordinary observer.”They cannot copy the form and overall appearance without infringing the design patent.
A provisional patent application is really a step toward acquiring a utility patent, where invention may not yet be ready to get a utility patent. Quite simply, when it seems as if the invention cannot yet get yourself a utility patent, the provisional application could be filed within the Patent Office to build the inventor’s priority to the invention.Since the inventor continues to develop the invention to make further developments which allow a utility patent to become obtained, then your inventor can “convert” the provisional application to your full utility application. This later application is “given credit” for the date if the provisional application was initially filed.
A provisional patent has several benefits:
A) Patent Pending Status: The most popular benefit from a Provisional Patent Application is that it allows the inventor to right away begin marking the merchandise “patent pending.” It has a period-proven tremendous commercial value, just like the “as seen on TV” label that is put on many products. An item bearing both of these phrases clearly possesses a commercial marketing advantage right from the start.
B) Capacity to increase the invention: After filing the provisional application, the inventor has twelve months to “convert” the provisional into a “full blown” utility application.In that year, the inventor should try to commercialize the merchandise and assess its potential. In the event the product appears commercially viable during that year, then the inventor is asked to convert the provisional application right into a utility application.However, unlike a typical utility application which cannot be changed by any means, a provisional application may have additional material included in it to enhance it upon its conversion within 1 year.Accordingly, any helpful information or tips that were obtained by the inventor or his marketing/advertising agents during commercialization of the product could be implemented and protected during that time.
C) Establishment of a filing date: The provisional patent application offers the inventor using a crucial “filing date.” In other words, the date that the provisional is filed becomes the invention’s filing date, for the later filed/converted utility patent.
Requirements for obtaining a utility patent. When you are certain that your invention is actually a potential candidate to get a utility patent (because it fits within among the statutory classes), you need to then move ahead to evaluate whether your invention can satisfy two key requirements — “novelty” and “unobviousness.” These two requirements are essentially worried about whether your invention is totally new, and when so, whether there exists a substantial difference between it and similar products in the related field.
A) Novelty: To have a utility patent, you have to initially see whether your invention is “novel”. Put simply, can be your invention new?Are you the first person to get thought of it? For example, if you were to apply for a patent on the bulb, it seems like quite clear which you would not be eligible for a patent, since the light bulb is not really a brand new invention. The Patent Office, after receiving the application, would reject it based on the reality that Edison invented the lighting 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” prior to your conception of the invention or everything recognized to the public more than one year before you file a patent application for that invention).
For your invention to be novel regarding other inventions on the planet (prior art), it has to just be different in a few minimal way. Any trivial physical difference will suffice to render your invention novel more than a similar invention.If you were to invent a square light bulb, your invention would sometimes be novel when compared to the Edison bulb (since his was round/elliptical). If the patent office would cite the round Edison light against your square one as prior art to show that the invention was not novel, they might be incorrect. However, if there exists an invention which is just like yours in every way your invention lacks novelty and is also not patentable.
Typically, the novelty requirement is extremely easy to overcome, since any slight variation in shape, size, combination of elements, etc. will satisfy it. However, however 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 harder to meet the non-obviousness requirement.
B) Non-obviousness: As mentioned above, the novelty requirement is definitely the easy obstacle to beat in the quest for a patent. Indeed, if novelty were the only requirement to fulfill, then just about anything conceivable may be patented as long as it differed slightly from all of previously developed conceptions. Accordingly, a more difficult, complex requirement has to 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 and also the related prior art is probably not “identical” (meaning that the invention is novel with regards 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 specific invention.
This is in actuality the Patent and Trademark Office’s method 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 typically quite evident whether any differences exist between your invention as well as the prior art.With this point there is not any room for subjective opinion. Regarding non-obviousness, however, there is a substantial amount of room for various opinions, since the requirement is inherently subjective: each person, including different Examiners on the Patent Office, may have different opinions regarding whether the invention is really obvious.
Some common examples of things which usually are not usually considered significant, and therefore which are usually considered “obvious” include: the mere substitution of materials to create something lighter in weight; changing the size or color; combining pieces of the type commonly found together; substituting one well known component for the next similar component, etc.
IV. What exactly is considered prior art from the Patent Office?
The patent laws, specifically 35 U.S.C. section 102, outline eight major types of prior art which may be used to stop you from acquiring a patent. Put simply, it defines exactly those things in which the PTO can cite against you in an effort to prove that your invention is not in reality novel or even to show that your invention is obvious. These eight sections could be divided 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 not the very first inventor); and prior art which dates back prior to your “filing date” (thus showing which you may have waited very long to submit for any patent).
A) Prior art which dates back before your date of invention: It would appear to sound right that when 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 become the first inventor. Section 102(a) from 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 america: Any evidence that your particular invention was “known” by others, in the United States, before your date of invention. Even if you have no patent or written documentation showing that your invention was known in the usa, the PTO might 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 the usa: Use by others of the invention you are trying to patent in public in the United States, prior to your date of invention, could be held against your patent application from the PTO. This should make clear sense, since if someone else was publicly utilizing the invention even before you conceived from it, you obviously can not be the original and first inventor of this, and you do not deserve to get a patent because of it.
3) Patented in america or abroad: Any United States or foreign patents which issued before your date of invention and which disclose your invention is going to be used against your patent application by the PTO. As an example, 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, United States Of America 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 Of America or foreignprinted publications (including books, newspapers, magazines, trade journals, etc.) which disclose your invention and were published prior to your date of invention will prevent you from acquiring a patent.Again, the reasoning here is that if your conception was described publicly in a printed publication, then you certainly usually are not the very first inventor (since another person looked at it before you) and you also are certainly not eligible for patent onto it.
B)Prior art which extends back just before your filing date: As noted above, prior art was defined as everything known just before your conception from 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 numerous circumstances, even though you were the first to have conceived/invented something, you will end up unable to obtain a patent into it when it has entered the world of public knowledge and more than 1 year has passed between that time along with your filing of any patent application. The goal of this rule is always to encourage people to try to get patents on their own inventions at the earliest opportunity or risk losing them forever. Section 102(b) of the patent law defines specifically those kinds of prior art which is often used against you as a “one-year bar” as follows:
1) Commercial activity in the United States: When the invention you want to patent was sold or offered for sale in america several year before you file a patent application, then you certainly are “barred” from ever acquiring a patent on your own invention.
EXAMPLE: you conceive of the invention on January 1, 2008, and provide it for sale on January 3, 2008, in an attempt to raise some funds to get a patent. You need to file your patent application no later than January 3, 2009 (1 year from your day you offered it available for sale).If you file your patent application on January 4, 2009, for instance, the PTO will reject your application as being barred as it was offered available for sale more than one year just before your filing date.This 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 assume that on February 1, 2008, someone else conceived of your invention and began selling it. This starts your twelve months clock running!Should you not file a patent on the invention by February 2, 2009, (1 year from your date one other person began selling it) then you certainly also will be forever barred from getting a patent. Note that this provision in the law prevents from obtaining a patent, even though there is not any prior art dating back to to before your date of conception and you are indeed the initial inventor (thus satisfying 102(a)), simply because the invention was available to the general public for over one year before your filing date due to another person’s sale.Accordingly, “section 102(b) one-year bars” can ruin your odds of acquiring a patent even when you are the initial inventor and possess satisfied section 102(a).
2) Public use in america: In the event the invention you intend to Patent An Idea was used in the United States on your part or some other more than one year before your filing of a patent application, then you are “barred” from ever obtaining a patent on the invention. Typical types of public use are when you or another person display and use the invention in a trade exhibition or public gathering, on tv, or elsewhere where the general public has potential access.The general public use will not need to be one which specifically plans to make the public aware of the invention. Any use which is often potentially accessed through the public will suffice to begin usually the one year clock running (but a secret use will often not invoke usually the one-year rule).
3) Printed publication in america or abroad: Any newspaper article, magazine article, trade paper, academic thesis or any other printed publication by you or by another person, available to the public in america or abroad several year before your filing date, will stop you from getting a patent on the invention.Be aware that even an article published by you, about your own invention, will start the one-year clock running.So, for example, in the event you detailed your invention in a natmlt release and mailed it, this could start usually the 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 america or abroad: When a United States Of America or foreign patent covering your invention issued over a year just before your filing date, you will end up barred from getting a patent. Compare this with all the previous section regarding United States Of America and foreign patents which states that, under 102(a) in the patent law, you are prohibited from getting 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 a patent on an invention which was disclosed in another patent issued over a year ago, even if your date of invention was ahead of the filing date of this patent.