What is a patent? A U . S . Patent is essentially a “grant of rights” for a limited period. In layman’s terms, it is a contract where the United States government expressly permits an individual or company to monopolize a certain concept for a limited time.
Typically, our government frowns upon any kind of monopolization in commerce, due to the belief that monopolization hinders free trade and competition, degrading our economy. An excellent example will be the forced break-up of Bell Telephone some years back in to the many regional phone companies. The federal government, particularly the Justice Department (the governmental agency which prosecutes monopoly or “antitrust” violations), considered that Bell Telephone was an unfair monopoly and forced it to relinquish its monopoly powers over the telephone industry.
Why, then, would the us government permit a monopoly as Inventhelp Stories? The federal government makes an exception to encourage inventors to come forward using their creations. By doing this, the us government actually promotes advancements in technology and science.
To begin with, it should be clear to you personally precisely how a patent behaves as a “monopoly. “A patent permits the property owner in the patent to avoid someone else from producing the item or making use of the process included in the patent. Consider Thomas Edison and his most popular patented invention, the sunshine bulb. With his patent for your bulb, Thomas Edison could prevent some other person or company from producing, using or selling light bulbs without his permission. Essentially, no one could contest with him in the light business, and hence he possessed a monopoly.
However, in order to receive his monopoly, Thomas Edison had to give something in turn. He necessary to fully “disclose” his invention for the public.
To obtain a United States Patent, an inventor must fully disclose just what the invention is, how it operates, and the best way known from the inventor making it.It is actually this disclosure towards the public which entitles the inventor to some monopoly.The logic for accomplishing this is the fact that by promising inventors a monopoly in exchange for disclosures towards the public, inventors will continually strive to develop technologies and disclose those to the general public. Providing all of them with the monopoly allows them to profit financially from your invention. Without this “tradeoff,” there would be few incentives to build up technologies, because without a patent monopoly an inventor’s effort would bring him no financial reward.Fearing that their invention will be stolen once they try to commercialize it, the inventor might never tell a soul regarding their invention, and also the public would not benefit.
The grant of rights under a patent will last for a limited period.Utility patents expire two decades after they are filed.If this type of was incorrect, and patent monopolies lasted indefinitely, there will be serious consequences. For instance, if Thomas Edison still held an in-force patent for your bulb, we might probably have to pay about $300 to get an easy bulb today.Without competition, there will be little incentive for Edison to enhance upon his light.Instead, when the Edison light patent expired, everyone was able to manufacture bulbs, and lots of companies did.The vigorous competition to perform just that after expiration from the Edison patent resulted in better quality, lower costing light bulbs.
Varieties of patents. You will find essentially three varieties 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 actually “does” something).Quite simply, one thing that is different or “special” regarding the invention must be to get a functional purpose.To qualify for utility patent protection, an invention also must fall within at least one of the following “statutory categories” as required under 35 USC 101. Take into account that virtually any physical, functional invention will fall into at least one of those categories, which means you need not be concerned with which category best describes your invention.
A) Machine: consider a “machine” as a thing that accomplishes a job due to the interaction of their physical parts, like a can opener, a vehicle engine, a fax machine, etc.This is the combination and interconnection of such physical parts that we are concerned and which can be protected through the How To Obtain A Patent.
B) Article of manufacture: “articles of manufacture” ought to be regarded as things which accomplish an activity similar to a machine, but minus the interaction of numerous physical parts.While articles of manufacture and machines may appear to be similar in many instances, you are able to distinguish the two by considering articles of manufacture as increasing numbers of simplistic things that normally have no moving parts. A paper clip, for instance is definitely an article of manufacture.It accomplishes a job (holding papers together), but is clearly not a “machine” as it is a basic device which will not rely on the interaction of numerous parts.
C) Process: a way of doing something through one or more steps, each step interacting in some way using a physical element, is known as a “process.” A process could be a new approach to manufacturing a known product or could even be a brand new use for any known product. Board games are typically protected as 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 manner.
A design patent protects the “ornamental appearance” of an object, rather than its “utility” or function, which can be protected by way of a utility patent. Quite simply, when the invention is actually a useful object which has a novel shape or overall appearance, a design patent might supply the appropriate protection. To avoid infringement, a copier will have to create a version that does not look “substantially just like the ordinary observer.”They cannot copy the shape and overall appearance without infringing the design and style patent.
A provisional patent application is really a step toward obtaining a utility patent, in which the invention might not exactly yet anticipate to get a utility patent. In other words, 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 build the inventor’s priority for the invention.As the inventor will continue to develop the invention making further developments that allow a utility patent to be obtained, then your inventor can “convert” the provisional application to a full utility application. This later application is “given credit” for your date if the provisional application was initially filed.
A provisional patent has several advantages:
A) Patent Pending Status: The most popular benefit of a Provisional Patent Application is that it allows the inventor to immediately begin marking the product “patent pending.” It has a time-proven tremendous commercial value, like the “as seen in the media” label which can be placed on many products. A product bearing both of these phrases clearly possesses an industrial marketing advantage from the very beginning.
B) Capacity to increase the invention: After filing the provisional application, the inventor has twelve months to “convert” the provisional in to a “full blown” utility application.During that year, the inventor should try to commercialize the product and assess its potential. In the event the product appears commercially viable in that year, then this inventor is encouraged to convert the provisional application into a utility application.However, unlike an ordinary utility application which can not be changed by any means, a provisional application could have additional material added to it to boost it upon its conversion within one year.Accordingly, any helpful information or tips that had been obtained by the inventor or his marketing/advertising agents during commercialization in the product could be implemented and guarded during those times.
C) Establishment of any filing date: The provisional patent application also provides the inventor using a crucial “filing date.” Quite simply, 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. Once you are certain that your invention is really a potential candidate to get a utility patent (as it fits within among the statutory classes), you need to then move ahead to assess whether your invention can satisfy two key requirements — “novelty” and “unobviousness.” Both of these requirements are essentially focused on whether your invention is new, and if so, whether there is a substantial difference between it and other products in the related field.
A) Novelty: To obtain a utility patent, you have to initially see whether your invention is “novel”. In other words, can be your invention new?Are you currently the first person to have considered it? For example, if you were to apply for a patent on the light, it seems quite clear which you would not eligible for a patent, since the light bulb will not be a brand new invention. The Patent Office, after receiving the application, would reject it based upon the fact that Edison invented the light bulb many years 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 known to the general public multiple year before you file a patent application for your invention).
For your invention to get novel with respect to other inventions in the world (prior art), it must simply be different in certain minimal way. Any trivial physical difference will suffice to render your invention novel over a similar invention.If you decide to invent a square bulb, your invention would actually be novel when compared to the Edison light (since his was round/elliptical). In the event the patent office were to cite the round Edison light bulb against your square one as prior art to exhibit that the invention had not been novel, they might be incorrect. However, if there exists an invention which can be identical to yours in every single way your invention lacks novelty and is not patentable.
Typically, the novelty requirement is very easy to overcome, since any slight variation fit, size, combination of elements, etc. will satisfy it. However, even though the invention is novel, it may fail one other requirement mentioned above: “non-obviousness.” So, if you find that your invention overcomes the novelty requirement, tend not to celebrate yet — it really is more challenging to meet the non-obviousness requirement.
B) Non-obviousness: As mentioned above, the novelty requirement will be the easy obstacle to get over within the pursuit of a patent. Indeed, if novelty were the sole requirement to fulfill, then just about everything conceivable may be patented provided that it differed slightly from all previously developed conceptions. Accordingly, a far more difficult, complex requirement should be satisfied right after the novelty question is met. This second requirement is referred to as “non-obviousness.”
The non-obviousness requirement states partly that although an invention as well as the related prior art may not be “identical” (meaning that the invention is novel with regards to the prior art), the invention may nevertheless be unpatentable in the event the differences between it and the related prior art will be considered “obvious” to someone having ordinary skill in the area of the actual invention.
This really is in actuality the Patent and Trademark Office’s way 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 more often than not quite evident whether any differences exist involving the invention and also the prior art.On this point there is no room for subjective opinion. Regarding non-obviousness, however, there is certainly quite a bit of room for various opinions, since the requirement is inherently subjective: differing people, including different Examiners in the Patent Office, could have different opinions regarding whether or not the invention is really obvious.
Some common types of things which are certainly not usually considered significant, and so which can be usually considered “obvious” include: the mere substitution of materials to help make something lighter in weight; changing the size or color; combining items of what type commonly found together; substituting one well-known component for the next similar component, etc.
IV. Precisely what is considered prior art by the Patent Office?
The patent laws, specifically 35 U.S.C. section 102, outline eight major varieties of prior art which can be used to keep you from obtaining a patent. Put simply, it defines exactly those ideas that the PTO can cite against you in an attempt to prove that your particular invention will not be in fact novel or show that your invention is obvious. These eight sections may be divided into an arranged and understandable format consisting of two main categories: prior art which is dated before your date of “invention” (thus showing that you are currently not the first inventor); and prior art which dates back just before your “filing date” (thus showing which you may have waited too long to file for a patent).
A) Prior art which extends back prior to your date of invention: It would appear to make sense 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 since you would not truly be the first inventor. Section 102(a) of 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 the invention was “known” by others, in america, before your date of invention. Even if there is no patent or written documentation showing that your invention was known in the United States, the PTO might still reject your patent application under section 102(a) as lacking novelty when they can show that your invention was generally recognized to the general public just before your date of invention.
2) Public use in america: Use by others in the invention you are trying to patent in public places in america, just before your date of invention, may be held against your patent application through the PTO. This should make clear sense, since if a person else was publicly utilizing the invention before you even conceived from it, you obviously can not be the initial and first inventor of it, and you do not deserve to get a patent for this.
3) Patented in the usa 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. For 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 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 U . S . or foreignprinted publications (including books, newspapers, magazines, trade journals, etc.) which disclose your invention and were published just before your date of invention will prevent you from obtaining a patent.Again, the reasoning here is when your conception was described publicly in a printed publication, then you certainly are not the first inventor (since someone else looked at it before you decide to) and also you usually are not eligible to patent on it.
B)Prior art which goes back prior to your filing date: As noted above, prior art was considered everything known prior to your conception in the invention or everything recognized to people multiple year before your filing of any patent application. What this means is that in lots of circumstances, even if you were the first to have conceived/invented something, you will end up unable to acquire a patent onto it when it has entered the world of public knowledge and more than twelve months has gone by between that point and your filing of any patent application. The objective of this rule is always to encourage people to apply for patents on their inventions as soon as possible or risk losing them forever. Section 102(b) of the patent law defines specifically those kinds of prior art which can be used against you as being a “one-year bar” the following:
1) Commercial activity in the United States: When the invention you intend to patent was sold or offered on the market in the United States multiple year before you file a patent application, then you are “barred” from ever acquiring a patent on the invention.
EXAMPLE: you conceive of your invention on January 1, 2008, and provide it available for sale on January 3, 2008, so as to raise some funds to get a patent. You must file your patent application no later than January 3, 2009 (1 year from the day you offered it for sale).If you file your patent application on January 4, 2009, for instance, the PTO will reject the application to be barred as it was offered for sale several year prior to your filing date.This is the case if someone 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 for sale publicly.You merely kept it to yourself.Also think 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 the invention by February 2, 2009, (one year from your date the other person began selling it) then you also is going to be forever barred from getting a patent. Remember that this provision from the law prevents you against acquiring a patent, although there is absolutely no prior art dating back to before your date of conception and also you truly are the initial inventor (thus satisfying 102(a)), for the reason that the invention was available to the general public more than 1 year before your filing date as a result of another person’s sale.Accordingly, “section 102(b) one-year bars” can ruin your odds of getting a patent even when you are the initial inventor and have satisfied section 102(a).
2) Public use in america: In the event the invention you intend to Inventhelp New Inventions was applied in the United States by you or some other several year before your filing of the patent application, then you definitely are “barred” from ever acquiring a patent on your invention. Typical examples of public use are once you or somebody else display and make use of the invention with a trade show or public gathering, on television, or elsewhere where the general public has potential access.People use do not need to be one that specifically intends to make the public conscious of the invention. Any use which can be potentially accessed through the public will suffice to start the one year clock running (but a secret use will usually not invoke the one-year rule).
3) Printed publication in the United States or abroad: Any newspaper article, magazine article, trade paper, academic thesis or some other printed publication by you or by someone else, offered to people in the usa or abroad more than one year before your filing date, will keep you from obtaining a patent on your own invention.Remember that even a write-up published by you, about your own invention, begins the main one-year clock running.So, as an example, if you detailed your invention in a natmlt release and mailed it out, this could start the one-year clock running.So too would the one-year clock start running to suit your needs when a complete stranger published a printed article about the topic of your invention.
4) Patented in america or abroad: If a U . S . or foreign patent covering your invention issued spanning a year prior to your filing date, you will end up barred from getting a patent. Compare this using the previous section regarding United States Of America and foreign patents which states that, under 102(a) from the patent law, you might be prohibited from acquiring a patent in the event the filing date of another patent is earlier than your date of invention. Under 102(b) which we are discussing here, you can not get yourself a patent on an invention which was disclosed in another patent issued over this past year, even when your date of invention was ahead of the filing date of this patent.