What is a patent? A U . S . Patent is basically a “grant of rights” for a limited period. In layman’s terms, it is acontract in which the U . S . government expressly permits a person or company to monopolize a certain concept for a limited time. Typically, our government frowns upon any type of monopolization in commerce, due to the belief that monopolization hinders free trade and competition, degrading our economy. An excellent example is the forced break-up of Bell Telephone some years back into the many regional phone companies. The government, in particular 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 government permit a monopoly in the form of a patent? The government makes an exception to encourage inventors in the future forward making use of their creations. By doing this, the government actually promotes advancements in science and technology.
First of all, it needs to be clear for you just just how a patent behaves as a “monopoly. “A patent permits the owner of the How To File A Patent With Inventhelp to avoid other people from producing the merchandise or making use of the process included in 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 could prevent every other person or company from producing, using or selling light bulbs without his permission. Essentially, no one could compete with him in the light bulb business, and hence he possessed a monopoly.
However, in order to obtain his monopoly, Thomas Edison needed to give something in exchange. He necessary to fully “disclose” his invention for the public. To acquire a U . S . Patent, an inventor must fully disclose what the invention is, the actual way it operates, and the easiest way known through the inventor to make it.It is actually this disclosure towards the public which entitles the inventor to a monopoly.The logic for carrying this out is that by promising inventors a monopoly in turn for disclosures for the public, inventors will continually make an effort to develop technologies and disclose them to the public. Providing all of them with the monopoly allows them to profit financially from your invention. Without it “tradeoff,” there will be few incentives to build up technologies, because without a patent monopoly an inventor’s hard work will bring him no financial reward.Fearing their invention would be stolen whenever 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 patent can last for a small period.Utility patents expire two decades once they are filed.If this was not the case, and patent monopolies lasted indefinitely, there will be serious consequences. As an example, if Thomas Edison still held an in-force patent for the light bulb, we might probably have to pay about $300 to get a light bulb today.Without competition, there will be little incentive for Edison to enhance upon his light bulb.Instead, when the Edison light bulb patent expired, everybody was free to manufacture light bulbs, and many companies did.The vigorous competition to do just that after expiration from the How To File A Patent With Inventhelp resulted in better quality, lower costing light bulbs.
II. Kinds 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 that have a “functional” aspect (in other words, the invention accomplishes a utilitarian result — it genuinely “does” something).In other words, one thing that is different or “special” regarding the invention should be for any functional purpose.To be eligible for utility patent protection, an invention also must fall within a minumum of one of the following “statutory categories” as required under 35 USC 101. Keep in mind that just about any physical, functional invention will fall into at least one of these categories, which means you do not need to be worried about which category best describes your invention.
A) Machine: imagine a “machine” as a thing that accomplishes a job as a result of interaction of its physical parts, such as a can opener, an automobile engine, a fax machine, etc.This is the combination and interconnection of those physical parts in which our company is concerned and which can be protected from the patent.
B) Article of manufacture: “articles of manufacture” needs to be regarded as items that accomplish a job just like a machine, but with no interaction of various physical parts.While articles of manufacture and machines may are most often similar in many cases, you can distinguish the two by thinking of articles of manufacture as more simplistic things that typically 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 a “machine” as it is a simple device which fails to rely on the interaction of numerous parts.
C) Process: a means of performing something through several steps, each step interacting somehow having a physical element, is actually a “process.” A procedure can be a new way of manufacturing a known product or can even become a new use for any known product. Board games are typically protected being a process.
D) Composition of matter: typically chemical compositions like pharmaceuticals, mixtures, or compounds including soap, concrete, paint, plastic, as well as the like can be patented as “compositions of matter.” Food items and recipes are often protected in this fashion.
A design patent protects the “ornamental appearance” of your object, instead of its “utility” or function, which can be protected by a utility patent. Quite simply, if the invention is really a useful object which has a novel shape or overall appearance, a design patent might supply the appropriate protection. In order to avoid infringement, a copier would have to produce 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 actually a step toward getting a utility patent, in which the invention might not yet be ready to obtain a utility patent. Quite simply, when it seems as if the invention cannot yet get yourself a utility patent, the provisional application may be filed inside the Patent Office to build the inventor’s priority to the invention.Since the inventor continues to develop the invention and make further developments which allow a utility patent to get obtained, then the inventor can “convert” the provisional application to your full utility application. This later application is “given credit” for the date once the provisional application was first 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 product “patent pending.” This has a time-proven tremendous commercial value, similar to the “as seen on television” label which can be applied to many products. An item bearing both these phrases clearly possesses a professional marketing advantage right in the first place.
B) Capability to increase the invention: After filing the provisional application, the inventor has twelve months to “convert” the provisional into a “full blown” utility application.During that year, the inventor need to commercialize the item and assess its potential. If the product appears commercially viable in that year, then your inventor is motivated to convert the provisional application right into a utility application.However, unlike a typical utility application which can not be changed in any respect, a provisional application may have additional material included in it to enhance it upon its conversion within one year.Accordingly, any helpful tips or tips which were obtained from the inventor or his marketing/advertising agents during commercialization in the product can be implemented and protected during those times.
C) Establishment of the filing date: The provisional patent application also provides the inventor having a crucial “filing date.” In other words, the date that this provisional is filed becomes the invention’s filing date, even for the later filed/converted utility patent.
III. Requirements for obtaining a utility patent. Once you are sure that your invention is a potential candidate to get a utility patent (because it fits within one of many statutory classes), you should then move ahead to evaluate whether your invention can satisfy two key requirements — “novelty” and “unobviousness.” Those two requirements are essentially worried about whether your invention is completely new, and if so, whether there exists a substantial distinction between it and similar products in the related field.
A) Novelty: To obtain a utility patent, you must initially determine whether your invention is “novel”. Quite simply, can be your invention new?Are you the initial person to have looked at it? As an example, should you make application for a patent on the light bulb, it seems like quite clear that you would not be entitled to a patent, since the light bulb is not a whole 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 light bulb 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 more than one year before you file a patent application for the invention).
For your invention to become novel with regards to other inventions on the planet (prior art), it should just be different in some minimal way. Any trivial physical difference will suffice to render your invention novel over a similar invention.If you decide to invent a square light bulb, your invention would actually be novel when compared to the Edison light bulb (since his was round/elliptical). When the patent office were to cite the round Edison light bulb against your square one as prior art to show that your particular invention was not novel, they would be incorrect. However, if there exists an invention which can be just like yours in each and every way your invention lacks novelty and is not patentable.
Typically, the novelty requirement is incredibly simple to overcome, since any slight variation fit, size, mixture of elements, etc. will satisfy it. However, even though the invention is novel, it might fail the other requirement mentioned previously: “non-obviousness.” So, in the event that your invention overcomes the novelty requirement, usually do not celebrate yet — it is actually more challenging to fulfill the non-obviousness requirement.
B) Non-obviousness: As stated before, the novelty requirement is the easy obstacle to overcome in the search for Inventors Corner. Indeed, if novelty were the only real requirement to satisfy, then just about anything conceivable might be patented as long as it differed slightly from all of previously developed conceptions. Accordingly, a much more difficult, complex requirement has to be satisfied after the novelty question for you 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 might not be “identical” (meaning that the invention is novel with respect to the prior art), the invention may nevertheless be unpatentable when the differences between it and also the related prior art could be considered “obvious” to someone having ordinary skill in the field of the particular invention.
This is in actuality the Patent and Trademark Office’s means of subjectively judging the “quality” of your invention. Clearly the PTO has no latitude in judging whether your invention is novel or otherwise — it is almost always quite evident whether any differences exist in between your invention and also the prior art.About this point there is not any room for subjective opinion. Regarding non-obviousness, however, there is quite a bit of room for various opinions, considering that the requirement is inherently subjective: different people, including different Examiners on the Patent Office, could have different opinions regarding whether or not the invention is definitely obvious.
Some common types of things that are not usually considered significant, and so that are usually considered “obvious” include: the mere substitution of materials to create something lighter in weight; changing the dimensions or color; combining items 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 varieties of prior art which can be utilized to stop you from obtaining a patent. Quite simply, it defines exactly those activities in which the PTO can cite against you in an effort to prove that your particular invention will not be in reality novel or to show that the invention is obvious. These eight sections can be broken down into an organized and understandable format comprising two main categories: prior art which is dated before your date of “invention” (thus showing that you are currently not the initial inventor); and prior art which dates back just before your “filing date” (thus showing that you might have waited too long to file to get a patent).
A) Prior art which dates back before your date of invention: It could appear to sound right that if 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 utilized for prior art should they occur before your date of invention:
1) Public knowledge in the usa: Any evidence that the invention was “known” by others, in the United States, 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 may still reject your patent application under section 102(a) as lacking novelty should they can show that your invention was generally recognized to the public just before your date of invention.
2) Public use in the usa: Use by others in the invention you are trying to patent in public places in the usa, before your date of invention, can be held against your patent application from the PTO. This will make clear sense, since if someone else was publicly utilizing the invention before you even conceived from it, you obviously cannot be the initial and first inventor of this, and you do not need to obtain a patent for 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 will be used against your patent application by the PTO. For instance, 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 United States 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 obtaining a patent.Again, the reasoning here is when your conception was described publicly in a printed publication, then you certainly are certainly not the first inventor (since somebody else considered it before you) and you are certainly not entitled to patent on it.
B)Prior art which dates back prior to your filing date: As noted above, prior art was described as everything known before your conception of the invention or everything proven to people multiple year before your filing of a patent application. What this means is that in numerous circumstances, even although you were the first one to have conceived/invented something, you may be unable to obtain a patent onto it when it has entered the world of public knowledge and over twelve months has gone by between that point and your filing of the patent application. The goal of this rule is always to persuade folks to apply for patents on their own inventions at the earliest opportunity or risk losing them forever. Section 102(b) in the patent law defines specifically those kinds of prior art which can be applied against you as a “one-year bar” as follows:
1) Commercial activity in america: When the invention you wish to patent was sold or offered available for sale in america more than one year before you file a patent application, then you certainly are “barred” from ever obtaining a patent on the invention.
EXAMPLE: you conceive of the invention on January 1, 2008, and offer it for sale on January 3, 2008, so as to raise some funds to try to get a patent. You must file your patent application no later than January 3, 2009 (twelve months from your day you offered it for sale).Should you file your patent application on January 4, 2009, as an example, the PTO will reject the application for being barred because it was offered on the market more than one year prior to your filing date.This is the case if someone other than yourself begins selling your invention. Assume still that you 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 believe that on February 1, 2008, another person conceived of your invention and began selling it. This starts your twelve months clock running!Unless you file a patent on your invention by February 2, 2009, (1 year from the date another person began selling it) then you certainly also will likely be forever barred from obtaining a patent. Note that the provision in the law prevents you against acquiring a patent, even though there is not any prior art dating back to before your date of conception and you truly are the very first inventor (thus satisfying 102(a)), for the reason that the invention was accessible to people more than one year before your filing date due to one other person’s sale.Accordingly, “section 102(b) one-year bars” can ruin your chances of obtaining a patent even though you are the first inventor and possess satisfied section 102(a).
2) Public use in the usa: If the invention you intend to patent was utilized in the usa by you or another multiple year before your filing of the patent application, then you certainly are “barred” from ever acquiring a patent on your own invention. Typical types of public use are whenever you or another person display and make use of the invention at a trade show or public gathering, on television, or anywhere else where general public has potential access.The public use do not need to be the one that specifically plans to have the public aware of the invention. Any use which can be potentially accessed through the public will suffice to begin with the main 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 some other printed publication on your part or by another person, available to people in the United States or abroad several year before your filing date, will stop you from acquiring a patent on your invention.Note that even a write-up authored by you, concerning your own invention, begins the one-year clock running.So, as an example, if you detailed your invention in a press ndefzr and mailed it out, this might start the one-year clock running.So too would usually the one-year clock start running for you personally if 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 more than a year before your filing date, you will be barred from getting a patent. Compare this with the previous section regarding United States Of America and foreign patents which states that, under 102(a) in the patent law, you happen to 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 our company is discussing here, you are unable to get yourself a patent with an invention that was disclosed in another patent issued over this past year, even in case your date of invention was before the filing date of that patent.