I. What’s a patent?
A United States Patent is basically a “grant of rights” for a restricted interval. In layman’s phrases, it’s a contract through which the USA authorities expressly permits a person or company to monopolize a selected idea for a restricted time.
Sometimes, our authorities frowns upon any kind of monopolization in commerce, as a result of perception that monopolization hinders free trade and competitors, degrading our financial system. A very good instance is the compelled break-up of Bell Phone some years in the past into the numerous regional phone firms. The federal government, particularly the Justice Division (the governmental agency which prosecutes monopoly or “antitrust” violations), believed that Bell Phone was an unfair monopoly and compelled it to relinquish its monopoly powers over the phone trade.
Why, then, would the federal government allow a monopoly within the type of a patent? The federal government makes an exception to encourage inventors to return ahead with their creations. In doing so, the federal government really promotes developments in science and know-how.
Initially, it ought to be clear to you simply how a patent acts as a “monopoly. “A patent permits the proprietor of the patent to forestall anybody else from producing the product or utilizing the method coated by the patent. Consider Thomas Edison and his most well-known patented invention, the light bulb. Along with his patent for the light bulb, Thomas Edison might forestall some other individual or company from producing, utilizing or promoting light bulbs with out his permission. Primarily, nobody might compete with him within the light bulb business, and therefore he possessed a monopoly.
Nevertheless, as a way to obtain his monopoly, Thomas Edison needed to give one thing in return. He wanted to totally “disclose” his invention to the general public.
To acquire a United States Patent, an inventor should totally disclose what the invention is, the way it operates, and one of the simplest ways recognized by the inventor to make it.It’s this disclosure to the general public which entitles the inventor to a monopoly.The logic for doing that is that by promising inventors a monopoly in return for his or her disclosures to the general public, inventors will frequently try to develop new applied sciences and disclose them to the general public. Offering them with the monopoly permits them to revenue financially from the invention. With out this “tradeoff,” there can be few incentives to develop new applied sciences, as a result of and not using a patent monopoly an inventor’s arduous work would deliver him no monetary reward.Fearing that their invention can be stolen once they try to commercialize it, the inventor may by no means inform a soul about their invention, and the general public would by no means profit.
The grant of rights underneath a patent lasts for a restricted interval.Utility patents expire 20 years after they’re filed.If this was not the case, and patent monopolies lasted indefinitely, there can be critical penalties. For instance, if Thomas Edison nonetheless held an in-force patent for the light bulb, we’d most likely must pay about $300 to purchase a light bulb at this time.With out competitors, there can be little incentive for Edison to enhance upon his light bulb.As an alternative, as soon as the Edison light bulb patent expired, everybody was free to fabricate light bulbs, and lots of firms did.The vigorous competitors to just do that after expiration of the Edison patent resulted in higher high quality, decrease costing light bulbs.
II. Varieties of patents
There are basically three sorts of patents which you need to be conscious of — utility patents, design patents, and provisional patent functions.
A utility patent applies to innovations which have a “useful” side (in different phrases, the invention accomplishes a utilitarian end result — it really “does” one thing).In different phrases, the factor which is completely different or “particular” concerning the invention should be for a useful function.To be eligible for utility patent safety, an invention should additionally fall inside no less than one of many following “statutory classes” as required underneath 35 USC 101. Needless to say nearly any bodily, useful invention will fall into no less than one among these classes, so you needn’t be involved with which class greatest describes your invention.
A) Machine: consider a “machine” as one thing which accomplishes a job as a result of interplay of its bodily components, equivalent to a can opener, an vehicle engine, a fax machine, and so forth.It’s the mixture and interconnection of those bodily components with which we’re involved and that are protected by the patent.
B) Article of manufacture: “articles of manufacture” ought to be considered issues which accomplish a job similar to a machine, however with out the interplay of assorted bodily components.Whereas articles of manufacture and machines might appear to be related in lots of cases, you may distinguish the 2 by considering of articles of manufacture as extra simplistic issues which usually don’t have any moving components. A paper clip, for instance is an article of manufacture.It accomplishes a job (holding papers collectively), however is clearly not a “machine” since it’s a easy machine which doesn’t depend on the interplay of assorted components.
C) Course of: a method of doing one thing by means of a number of steps, every step interacting indirectly with a bodily ingredient, is called a “course of.” A course of generally is a new technique of producing a recognized product or may even be a brand new use for a recognized product. Board games are usually protected as a course of.
D) Composition of matter: usually chemical compositions equivalent to prescribed drugs, mixtures, or compounds equivalent to soap, concrete, paint, plastic, and the like may be patented as “compositions of matter.” Meals gadgets and recipes are sometimes protected on this method.
A design patent protects the “decorative look” of an object, slightly than its “utility” or perform, which is protected by a utility patent. In different phrases, if the invention is a helpful object that has a novel form or total look, a design patent may present the suitable safety. To keep away from infringement, a copier must produce a model that doesn’t look “considerably much like the unusual observer.”They can not copy the form and total look with out infringing the design patent.
A provisional patent software is a step towards acquiring a utility patent, the place the invention won’t but be able to acquire a utility patent. In different phrases, if it appears as if the invention can’t but acquire a utility patent, the provisional software could also be filed within the Patent Workplace to determine the inventor’s precedence to the invention.Because the inventor continues to develop the invention and make additional developments which permit a utility patent to be obtained, then the inventor can “convert” the provisional software to a full utility software. This later software is “given credit” for the date when the provisional software was first filed.
A provisional patent has a number of advantages:
A) Patent Pending Standing: Essentially the most well-known advantage of a Provisional Patent Software is that it permits the inventor to instantly start marking the product “patent pending.” This has a time-proven great business worth, much like the “as seen on TV” label which is utilized to many products. A product bearing each of those phrases clearly possesses a business marketing benefit proper from the beginning.
B) Skill to enhance the invention: After submitting the provisional software, the inventor has one yr to “convert” the provisional right into a “full blown” utility software.Throughout that yr, the inventor ought to attempt to commercialize the product and assess its potential. If the product seems commercially viable throughout that yr, then the inventor is inspired to transform the provisional software right into a utility software.Nevertheless, in contrast to a traditional utility software which can’t be modified in any method, a provisional software might have further materials added to it to enhance it upon its conversion inside one yr.Accordingly, any useful data or suggestions which had been obtained by the inventor or his marketing/advertising agents throughout commercialization of the product may be applied and guarded at the moment.
C) Institution of a submitting date: The provisional patent software additionally gives the inventor with a vital “submitting date.” In different phrases, the date that the provisional is filed turns into the invention’s submitting date, even for the later filed/transformed utility patent.
III. Necessities for acquiring a utility patent
As soon as you’re certain that your invention is a possible candidate for a utility patent (because it suits inside one of many statutory courses), you need to then transfer forward to research whether or not your invention can fulfill two key necessities — “novelty” and “unobviousness.” These two necessities are basically involved with whether or not your invention is new, and if that’s the case, whether or not there’s a substantial distinction between it and related products within the associated subject.
A) Novelty: To acquire a utility patent, you need to initially decide whether or not your invention is “novel”. In different phrases, is your invention new?Are you the primary individual to have considered it? For instance, if you happen to had been to use for a patent on the light bulb, it appears fairly clear that you wouldn’t be entitled to a patent, for the reason that light bulb is just not a brand new invention. The Patent Workplace, after receiving your software, would reject it primarily based upon the truth that Edison invented the light bulb a few years in the past. In rejecting your patent software, the Patent Workplace would really cite the Edison light bulb patent towards you as related “prior art” (prior art is the whole lot “recognized” previous to your conception of the invention or the whole lot recognized to the general public multiple yr earlier than you file a patent software for the invention).
In your invention to be novel with respect to different innovations on the earth (prior art), it should merely be completely different in some minimal method. Any trivial bodily distinction will suffice to render your invention novel over an analogous invention.For those who had been to invent a sq. light bulb, your invention would really be novel in comparison with the Edison light bulb (since his was spherical/elliptical). If the patent workplace had been to quote the spherical Edison light bulb towards your sq. one as prior art to indicate that your invention was not novel, they’d be incorrect. Nevertheless, if there exists an invention which is similar to yours in each method your invention lacks novelty and isn’t patentable.
Sometimes, the novelty requirement is very simple to beat, since any slight variation in form, measurement, mixture of parts, and so forth. will fulfill it. Nevertheless, though the invention is novel, it’d fail the opposite requirement talked about above: “non-obviousness.” So, if you happen to discover that your invention overcomes the novelty requirement, don’t have fun but — it’s tougher to satisfy the non-obviousness requirement.
B) Non-obviousness: As talked about above, the novelty requirement is the simple impediment to beat within the pursuit of a patent. Certainly, if novelty had been the one requirement to fulfill, then virtually something conceivable may very well be patented so long as it differed barely from all beforehand developed conceptions. Accordingly, a tougher, complicated requirement should be glad after the novelty query is met. This second requirement is named “non-obviousness.”
The non-obviousness requirement states partially that though an invention and the associated prior art won’t be “similar” (that means that the invention is novel with respect to the prior art), the invention might however be unpatentable if the variations between it and the associated prior art can be thought-about “apparent” to an individual having unusual ability within the subject of the actual invention.
That is in fact the Patent and Trademark Workplace’s method of subjectively judging the “high quality” of an invention. Clearly the PTO has no latitude in judging whether or not your invention is novel or not — it’s virtually all the time fairly evident whether or not any variations exist between your invention and the prior art.On this level there isn’t any room for subjective opinion. Concerning non-obviousness, nonetheless, there may be fairly a little bit of room for varied opinions, for the reason that requirement is inherently subjective: completely different folks, together with completely different Examiners on the Patent Workplace, could have completely different opinions relating to whether or not the invention is actually apparent.
Some widespread examples of issues which aren’t normally thought-about vital, and thus that are normally thought-about “apparent” embody: the mere substitution of supplies to make one thing lighter in weight; altering the dimensions or shade; combining gadgets of the sort generally discovered collectively; substituting one well-known part for an additional related part, and so forth.
IV. What is taken into account prior art by the Patent Workplace?
The patent legal guidelines, particularly 35 U.S.C. part 102, define eight main sorts of prior art which can be utilized to forestall you from acquiring a patent. In different phrases, it defines precisely these issues which the PTO can cite towards you in an try to show that your invention is just not the truth is novel or to indicate that your invention is clear. These eight sections may be damaged down into an organized and comprehensible format consisting of two predominant classes: prior art which is dated earlier than your date of “invention” (thus displaying that you’re not the primary inventor); and prior art which dates again previous to your “submitting date” (thus displaying that you simply might need waited too lengthy to file for a patent).
A) Prior art which dates again previous to your date of invention: It might appear to make sense that if prior art exists which dates earlier than your date of invention, you shouldn’t be entitled to acquire a patent on that invention since you wouldn’t really be the primary inventor. Part 102(a) of the patent legislation particularly describes the issues which can be utilized as prior art in the event that they happen earlier than your date of invention:
1) Public information in the USA: Any proof that your invention was “recognized” by others, in the USA, previous to your date of invention. Even when there isn’t any patent or written documentation displaying that your invention was recognized in the USA, the PTO should reject your patent software underneath part 102(a) as missing novelty if they will present that your invention was usually recognized to the general public previous 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 USA, previous to your date of invention, may be held towards your patent software by the PTO. This could clarify sense, since if another person was publicly utilizing the invention earlier than you even conceived of it, you clearly can’t be the unique and first inventor of it, and you don’t need to obtain a patent for it.
3) Patented in the USA or overseas: Any United States or international patents which issued previous to your date of invention and which disclose your invention will probably be used towards your patent software by the PTO. For instance, assume that you simply invent a lobster de-shelling tool on June 1, 2007.The PTO can use any patents which disclose an similar lobster de-shelling tool, United States or international, which issued earlier than June 1, 2007 (your date of invention) towards your patent software.
4) Revealed publicly in United States or overseas: Any United States or foreignprinted publications (equivalent to books, newspapers, magazines, trade journals, and so forth.) which disclose your invention and had been printed previous to your date of invention will forestall you from acquiring a patent.Once more, the reasoning right here is that in case your conception was described publicly in a printed publication, then you aren’t the primary inventor (since another person considered it earlier than you) and you aren’t entitled to patent on it.
B)Prior art which dates again previous to your submitting date: As famous above, prior art was outlined as the whole lot recognized previous to your conception of the invention or the whole lot recognized to the general public multiple yr earlier than your submitting of a patent software. What this implies is that in lots of circumstances, though you had been the primary to have conceived/invented one thing, you can be unable to get a patent on it if it has entered the realm of public information and multiple yr has handed between that time and your submitting of a patent software. The aim of this rule is to encourage folks to use for patents on their innovations as quickly as attainable or danger shedding them perpetually. Part 102(b) of the patent legislation defines particularly these sorts of prior art which can be utilized towards you as a “one-year bar” as follows:
1) Industrial exercise in the USA: If the invention you want to patent was bought or provided on the market in the USA multiple yr earlier than you file a patent software, then you’re “barred” from ever acquiring a patent in your invention 특허매매.
EXAMPLE: you conceive of your invention on January 1, 2008, and supply it on the market on January 3, 2008, in an try to boost some funds to use for a patent. You should file your patent software no later than January 3, 2009 (one yr from the day you provided it on the market).For those who file your patent software on January 4, 2009, for instance, the PTO will reject your software as being barred because it was provided on the market multiple yr previous to your submitting date.This additionally can be the case if somebody apart from your self begins promoting your invention. Assume nonetheless that you simply conceived your invention on January 1, 2008, however didn’t promote or supply it on the market publicly.You simply stored it to your self.Additionally assume that on February 1, 2008, another person conceived of your invention and started promoting it. This begins your one yr clock operating!If you don’t file a patent in your invention by February 2, 2009, (one yr from the date the opposite individual started promoting it) you then additionally will probably be perpetually barred from acquiring a patent. Be aware that this provision of the legislation prevents you from getting a patent, though there isn’t any prior art relationship again to earlier than your date of conception and you’re certainly the primary inventor (thus satisfying 102(a)), just because the invention was obtainable to the general public for over one yr earlier than your submitting date because of the opposite individual’s sale.Accordingly, “part 102(b) one-year bars” can destroy your probabilities of getting a patent though you’re the first inventor and have glad part 102(a).
2) Public use in the USA: If the invention you want to patent was utilized in the USA by you or one other multiple yr earlier than your submitting of a patent software, then you’re “barred” from ever acquiring a patent in your invention. Typical examples of public use are while you or another person show and use the invention at a trade present or public gathering, on tv, or wherever else the place most people has potential entry.The general public use needn’t be one which particularly intends to make the general public conscious of the invention. Any use which may be doubtlessly accessed by the general public will suffice to start the one yr clock operating (however a secret use will normally not invoke the one-year rule).
3) Printed publication in the USA or overseas: Any newspaper article, journal article, trade paper, educational thesis or different printed publication by you or by one other individual, accessible to the general public in the USA or overseas multiple yr earlier than your submitting date, will forestall you from acquiring a patent in your invention.Be aware that even an article printed by you, about your personal invention, will begin the one-year clock operating.So, as an illustration, if you happen to detailed your invention in a press launch and mailed it out, this might begin the one-year clock operating.So too would the one-year clock begin operating for you if a whole stranger printed a printed article concerning the topic of your invention.
4) Patented in the USA or overseas: If a United States or international patent masking your invention issued over a yr previous to your submitting date, you can be barred from acquiring a patent. Evaluate this with the earlier part relating to United States and international patents which states that, underneath 102(a) of the patent legislation, you’re prohibited from getting a patent if the submitting date of one other patent is sooner than your date of invention. Beneath 102(b) which we’re discussing right here, you can’t get a patent on an invention which was disclosed in one other patent issued over a yr in the past, even when your date of invention was earlier than the submitting date of that patent.