What is a patent? A U . S . Patent is actually a “grant of rights” for a limited period. In layman’s terms, it is a contract where the United States Of America government expressly permits an individual or company to monopolize a certain concept for a short 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 definitely the forced break-up of Bell Telephone some years ago in to the many regional phone companies. The us government, particularly 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 on the telephone industry.
Why, then, would the us government permit a monopoly as Inventhelp Office Locations? The us government makes an exception to encourage inventors ahead forward with their creations. In doing so, the us government actually promotes advancements in science and technology.
To start with, it needs to be clear to you just how a patent acts as a “monopoly. “A patent permits the property owner in the patent to avoid other people from producing the item or utilizing the process protected by the patent. Think of Thomas Edison along with his most popular patented invention, the light bulb. Together with his patent for that bulb, Thomas Edison could prevent any other person or company from producing, using or selling light bulbs without his permission. Essentially, no person could contest with him in the bulb business, and therefore he possessed a monopoly.
However, so that you can receive his monopoly, Thomas Edison were required to give something in turn. He required to fully “disclose” his invention for the public.
To acquire a United States Patent, an inventor must fully disclose what the invention is, the way it operates, and the most effective way known through the inventor to really make it.It is actually this disclosure towards the public which entitles the inventor to a monopoly.The logic for doing this is the fact by promising inventors a monopoly in return for their disclosures for the public, inventors will continually make an effort to develop technologies and disclose those to people. Providing these with the monopoly enables them to profit financially from your invention. Without this “tradeoff,” there would be few incentives to develop technologies, because with no patent monopoly an inventor’s work will bring him no financial reward.Fearing their invention could be stolen when they make an effort to commercialize it, the inventor might never tell a soul with regards to their invention, and also the public would never benefit.
The grant of rights within patent lasts for a limited period.Utility patents expire 20 years after they are filed.If this 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 the light, we may probably must pay about $300 to get an easy bulb today.Without competition, there could be little incentive for Edison to enhance upon his light bulb.Instead, after the Edison bulb patent expired, everyone was able to manufacture bulbs, and lots of companies did.The vigorous competition to accomplish just that after expiration of the Edison patent led to higher quality, lower costing lights.
Kinds 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 relates to inventions that have a “functional” aspect (put simply, the invention accomplishes a utilitarian result — it actually “does” something).In other words, the thing which is different or “special” about the invention must be for a functional purpose.To qualify for utility patent protection, an invention also must fall within one or more from the following “statutory categories” as required under 35 USC 101. Keep in mind that almost any physical, functional invention will fall into a minumum of one of those categories, so that you need not be worried about which category best describes your invention.
A) Machine: imagine a “machine” as something which accomplishes a task because of the interaction of its physical parts, for instance a can opener, an automobile engine, a fax machine, etc.This is the combination and interconnection of those physical parts with which our company is concerned and that are protected from the Patent Companies.
B) Article of manufacture: “articles of manufacture” should be looked at as items that accomplish a task just like a machine, but minus the interaction of various physical parts.While articles of manufacture and machines may are most often similar in many cases, you are able to distinguish the two by thinking of articles of manufacture as increasing numbers of simplistic things that routinely have no moving parts. A paper clip, for example is surely an article of manufacture.It accomplishes an activity (holding papers together), but is clearly not just a “machine” since it is a basic device which will not rely on the interaction of numerous parts.
C) Process: an easy method of performing something through several steps, each step interacting in some way using a physical element, is actually a “process.” An activity could be a new approach to manufacturing a known product or could even be a new use to get a known product. Board games are usually protected as being a process.
D) Composition of matter: typically chemical compositions including pharmaceuticals, mixtures, or compounds like soap, concrete, paint, plastic, and so on could be patented as “compositions of matter.” Food items and recipes are frequently protected in this fashion.
A design patent protects the “ornamental appearance” of an object, rather than its “utility” or function, that is protected with a utility patent. In other words, if the invention is a useful object that has a novel shape or overall look, a design patent might give you the appropriate protection. In order to avoid infringement, a copier would need to create a version that will not look “substantially just like the ordinary observer.”They cannot copy the design and overall appearance without infringing the style patent.
A provisional patent application is actually a step toward obtaining a utility patent, where the invention might not yet be ready to get a utility patent. Put simply, if it seems as if the invention cannot yet get yourself a utility patent, the provisional application might be filed in the Patent Office to establish the inventor’s priority for the invention.Because the inventor will continue to develop the invention and make further developments that 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 your date when the provisional application was filed.
A provisional patent has several benefits:
A) Patent Pending Status: Probably the most well-known benefit from a Provisional Patent Application is that it allows the inventor to instantly begin marking the item “patent pending.” This has a time-proven tremendous commercial value, just like the “as seen on TV” label which is placed on many products. A product bearing these two phrases clearly possesses an industrial marketing advantage from the very beginning.
B) Ability to improve the invention: After filing the provisional application, the inventor has twelve months to “convert” the provisional in to a “full blown” utility application.In that year, the inventor need to try to commercialize the merchandise and assess its potential. When the product appears commercially viable during that year, then your inventor is motivated to convert the provisional application right into a utility application.However, unlike an ordinary utility application which cannot be changed by any means, a provisional application may have additional material put into it to enhance it upon its conversion within 1 year.Accordingly, any helpful information or tips that had been obtained through the inventor or his marketing/advertising agents during commercialization of the product could be implemented and guarded at that time.
C) Establishment of a 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, for the later filed/converted utility patent.
Requirements for getting a utility patent. When you are certain that your invention is a potential candidate for a utility patent (because it fits within among the statutory classes), you should then move ahead to assess whether your invention can satisfy two key requirements — “novelty” and “unobviousness.” Those two requirements are essentially focused on whether your invention is totally new, and in case so, whether there is a substantial distinction between it and similar products within the related field.
A) Novelty: To acquire a utility patent, you need to initially decide if your invention is “novel”. In other words, is the invention new?Are you the initial person to possess considered it? As an example, if you decide to obtain a patent on the light, it seems quite clear that you simply would not be eligible to a patent, since the bulb is not a brand new invention. The Patent Office, after receiving your application, would reject it based upon the truth that Edison invented the light bulb a long time ago. In rejecting your patent application, the Patent Office would actually cite the Edison bulb patent against you as relevant “prior art” (prior art is everything “known” before your conception from the invention or everything recognized to people multiple year prior to deciding to file a patent application for your invention).
To your invention to become novel regarding other inventions on earth (prior art), it must simply be different in a few minimal way. Any trivial physical difference will suffice to render your invention novel spanning a similar invention.If you decide to invent a square bulb, your invention would sometimes be novel when compared to Edison light (since his was round/elliptical). When the patent office would cite the round Edison light bulb against your square one as prior art to exhibit that your invention had not been novel, they could be incorrect. However, if there exists an invention that is just like yours in every way your invention lacks novelty and it is not patentable.
Typically, the novelty requirement is extremely very easy to overcome, since any slight variation fit, size, combination of elements, etc. will satisfy it. However, however the invention is novel, it may fail one other requirement mentioned previously: “non-obviousness.” So, in the event that your invention overcomes the novelty requirement, usually do not 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 overcome in the pursuit of a patent. Indeed, if novelty were the sole requirement in order to satisfy, then just about anything conceivable might be patented as long as it differed slightly from all previously developed conceptions. Accordingly, a far more difficult, complex requirement has to be satisfied right after the novelty question for you is met. This second requirement is referred to as “non-obviousness.”
The non-obviousness requirement states in part that although an invention and also 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 as well as the related prior art could be considered “obvious” to someone having ordinary skill in the field of the specific invention.
This really is in fact the Patent and Trademark Office’s method of subjectively judging the “quality” of your invention. Clearly the PTO has no latitude in judging whether your invention is novel or not — it is actually almost always quite evident whether any differences exist between your invention and also the prior art.With this point there is no room for subjective opinion. Regarding non-obviousness, however, there exists quite a bit of room for various opinions, because the requirement is inherently subjective: each person, including different Examiners at the Patent Office, may have different opinions regarding if the invention is truly obvious.
Some common types of things that are not usually considered significant, and therefore which can be usually considered “obvious” include: the mere substitution of materials to make something lighter in weight; changing the dimensions or color; combining items of the type commonly found together; substituting one well known component for an additional similar component, etc.
IV. What is considered prior art by the Patent Office?
The patent laws, specifically 35 U.S.C. section 102, outline eight major kinds of prior art which may be used to prevent you from acquiring a patent. Put simply, it defines exactly those things in which the PTO can cite against you so as to prove that the invention is not really in fact novel or to demonstrate that your invention is obvious. These eight sections could be split up into a structured and understandable format composed of two main categories: prior art which can be dated before your date of “invention” (thus showing that you are currently not the very first inventor); and prior art which goes back before your “filing date” (thus showing which you may have waited too much time to file to get a patent).
A) Prior art which extends back prior to your date of invention: It could seem to seem sensible that if prior art exists which dates before your date of invention, you must not be entitled to acquire a patent on that invention as you would not truly become 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 america: Any evidence that your particular invention was “known” by others, in the usa, prior to your date of invention. Even if you have no patent or written documentation showing that your invention was known in america, the PTO may still reject your patent application under section 102(a) as lacking novelty if they can reveal that your invention was generally recognized to the general public prior to your date of invention.
2) Public use in america: Use by others of the invention you are attempting to patent in public in the United States, prior to your date of invention, may be held against your patent application by the PTO. This ought to make clear sense, since if somebody else was publicly using the invention before you even conceived of this, you obviously can not be the initial and first inventor of it, and you do not should get a patent for this.
3) Patented in america or abroad: Any United States Of America or foreign patents which issued just before your date of invention and which disclose your invention will likely be used against your patent application by the PTO. As an example, think that you invent a lobster de-shelling tool on June 1, 2007.The PTO are able to 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 United States Of America or abroad: Any United States Of America or foreignprinted publications (like books, newspapers, magazines, trade journals, etc.) which disclose your invention and were published prior to 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 are certainly not the first inventor (since another person looked at it before you) and you also are certainly 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 before your conception from the invention or everything known to the public more than one year before your filing of the patent application. What this means is that in many circumstances, even though you were the first one to have conceived/invented something, you will end up unable to get a patent into it if it has entered the realm of public knowledge and over twelve months has gone by between that time as well as your filing of any patent application. The goal of this rule would be to encourage people to try to get patents on their inventions at the earliest opportunity or risk losing them forever. Section 102(b) of the patent law defines specifically those types of prior art which is often used against you being a “one-year bar” the following:
1) Commercial activity in america: When the invention you wish to patent was sold or offered on the market in the United States several year prior to deciding to file a patent application, then you are “barred” from ever obtaining a patent on your own invention.
EXAMPLE: you conceive of the invention on January 1, 2008, and present it available for sale on January 3, 2008, in an effort to raise some funds to get a patent. You must file your patent application no later than January 3, 2009 (1 year through the day you offered it on the market).If you file your patent application on January 4, 2009, as an example, the PTO will reject your application as being barred since it was offered available for sale multiple year before your filing date.This is the case if someone besides yourself begins selling your invention. Assume still that you conceived your invention on January 1, 2008, but failed to sell or offer it on the market publicly.You just kept it to yourself.Also think that on February 1, 2008, someone else conceived of your own invention and began selling it. This starts your one year clock running!Unless you file a patent on your invention by February 2, 2009, (1 year from the date one other person began selling it) then you also will likely be forever barred from obtaining a patent. Remember that this provision in the law prevents from acquiring a patent, despite the fact that there is absolutely no prior art dating back to to before your date of conception and you also really are the initial inventor (thus satisfying 102(a)), simply because the invention was offered to people for over twelve months before your filing date as a result of one other person’s sale.Accordingly, “section 102(b) one-year bars” can ruin the chances of you getting a patent even when you are the initial inventor and possess satisfied section 102(a).
2) Public use in america: If the invention you wish to Inventors Help was applied in america by you or another several year before your filing of a patent application, then you definitely are “barred” from ever obtaining a patent on your invention. Typical examples of public use are whenever you or somebody else display and use the invention at a trade event or public gathering, on television, or anywhere else where the public has potential access.People use need not be one which specifically intends to make 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 america or abroad: Any newspaper article, magazine article, trade paper, academic thesis or other printed publication by you or by someone else, accessible to the general public in america or abroad multiple 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 begin the one-year clock running.So, for instance, should you detailed your invention in a natmlt release and mailed it out, this could start usually the one-year clock running.So too would the one-year clock start running for you personally in case a complete stranger published a printed article about the topic of your invention.
4) Patented in the United States or abroad: If a United States Of America or foreign patent covering your invention issued spanning a year just before your filing date, you will end up barred from acquiring 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 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 a patent with an invention which had been disclosed in another patent issued over last year, even though your date of invention was ahead of the filing date of the patent.