What is a patent? A United States Patent is actually a “grant of rights” for a limited period. In layman’s terms, it is a contract where the U . S . 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 ago into the many regional phone companies. The us government, in particular the Justice Department (the governmental agency which prosecutes monopoly or “antitrust” violations), thought that Bell Telephone was an unfair monopoly and forced it to relinquish its monopoly powers over the telephone industry.
Why, then, would the federal government permit a monopoly by means of How To Obtain A Patent? The federal government makes an exception to encourage inventors ahead forward using their creations. In doing so, the federal government actually promotes advancements in technology and science.
First of all, it should be clear for you just how a patent acts as a “monopoly. “A patent permits the property owner of the patent to prevent other people from producing the merchandise or making use of the process protected by the patent. Consider Thomas Edison and his most well-known patented invention, the sunshine bulb. Along with his patent for your light, Thomas Edison could prevent some other person or company from producing, using or selling bulbs without his permission. Essentially, nobody could contest with him inside the light business, and hence he possessed a monopoly.
However, so that you can receive his monopoly, Thomas Edison needed to give something in exchange. He required to fully “disclose” his invention for the public.
To acquire a United States Of America Patent, an inventor must fully disclose exactly what the invention is, the actual way it operates, and the easiest way known from the inventor making it.It is this disclosure for the public which entitles the inventor to your monopoly.The logic for carrying this out is the fact that by promising inventors a monopoly in exchange for their disclosures for the public, inventors will continually strive to develop technologies and disclose them to the public. Providing these with the monopoly enables them to profit financially from your invention. Without this “tradeoff,” there could be few incentives to develop technologies, because without having a patent monopoly an inventor’s effort would bring him no financial reward.Fearing that their invention will be stolen whenever they make an effort to commercialize it, the inventor might never tell a soul about their invention, as well as the public would not benefit.
The grant of rights within patent will last for a restricted period.Utility patents expire twenty years after they are filed.If the 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 that light, we might probably need to pay about $300 to get a light bulb today.Without competition, there would be little incentive for Edison to enhance upon his bulb.Instead, after the Edison light patent expired, everyone was liberated to manufacture bulbs, and several companies did.The vigorous competition to accomplish just that after expiration of the Edison patent resulted in better quality, lower costing bulbs.
Varieties of patents. There are essentially three varieties of patents which you should know of — utility patents, design patents, and provisional patent applications. A utility patent relates to inventions which may have a “functional” aspect (put simply, the invention accomplishes a utilitarian result — it genuinely “does” something).Quite simply, the one thing which can be different or “special” concerning the invention has to be for a functional purpose.To be eligible for utility patent protection, an invention must also fall within at least one in the following “statutory categories” as required under 35 USC 101. Remember that just about any physical, functional invention will belong to one or more of those categories, so you need not be concerned with which category best describes your invention.
A) Machine: imagine a “machine” as something which accomplishes an activity as a result of interaction of the physical parts, such as a can opener, a car engine, a fax machine, etc.It will be the combination and interconnection of those physical parts in which our company is concerned and that are protected through the Patent My Idea.
B) Article of manufacture: “articles of manufacture” should be looked at as things that accomplish a job like a machine, but minus the interaction of various physical parts.While articles of manufacture and machines may are most often similar in many instances, you can distinguish the 2 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 a task (holding papers together), but is clearly not just a “machine” since it is an easy device which will not rely on the interaction of varied parts.
C) Process: an easy method of accomplishing something through a number of steps, each step interacting in some manner having a physical element, is regarded as a “process.” An activity can be a new way of manufacturing a known product or can also be a whole new use for any known product. Board games are generally protected being a process.
D) Composition of matter: typically chemical compositions like pharmaceuticals, mixtures, or compounds like soap, concrete, paint, plastic, and so on could be patented as “compositions of matter.” Food items and recipes are often protected in this fashion.
A design patent protects the “ornamental appearance” of the object, instead of its “utility” or function, that is protected by way of a utility patent. Quite simply, when the invention is really a useful object which has a novel shape or overall appearance, a design patent might provide the appropriate protection. To prevent infringement, a copier will have to create a version that does not look “substantially similar to the ordinary observer.”They cannot copy the shape and overall appearance without infringing the design and style patent.
A provisional patent application is a step toward obtaining a utility patent, where invention might not exactly yet be ready to get yourself a utility patent. Quite simply, if this seems as though the invention cannot yet get a utility patent, the provisional application might be filed within the Patent Office to build the inventor’s priority to the invention.As the inventor continues to develop the invention to make further developments which permit a utility patent to get obtained, then your inventor can “convert” the provisional application to your full utility application. This later application is “given credit” for that date once the provisional application was first filed.
A provisional patent has several advantages:
A) Patent Pending Status: The most well-known benefit from a Provisional Patent Application is that it allows the inventor to right away begin marking the merchandise “patent pending.” This has a period-proven tremendous commercial value, like the “as seen on TV” label which is applied to many products. An item bearing both these phrases clearly possesses a professional marketing advantage right from the start.
B) Capability to increase the invention: After filing the provisional application, the inventor has one year 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 the inventor is encouraged to convert the provisional application into a utility application.However, unlike an ordinary utility application which should not be changed in any respect, a provisional application could have additional material put into it to enhance it upon its conversion within twelve months.Accordingly, any helpful information or tips that were obtained by the inventor or his marketing/advertising agents during commercialization in the product may 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.” Put simply, the date the provisional is filed becomes the invention’s filing date, even for the later filed/converted utility patent.
Requirements for getting a utility patent. When you are sure that your invention is really a potential candidate to get a utility patent (as it fits within one of many statutory classes), you should then move ahead to assess whether your invention can satisfy two key requirements — “novelty” and “unobviousness.” These two requirements are essentially focused on 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 obtain a utility patent, you need to initially decide if your invention is “novel”. Quite simply, is your invention new?Are you currently the initial person to possess considered it? As an example, should you apply for a patent on the light bulb, it seems quite clear that you simply would not really entitled to a patent, because the light is not really a brand new invention. The Patent Office, after receiving your application, would reject it dependant on the truth that Edison invented the lighting 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 from the invention or everything known to people several year prior to deciding to file a patent application for your invention).
For your invention to get novel regarding other inventions on earth (prior art), it should 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 light, your invention would sometimes be novel compared to the Edison light (since his was round/elliptical). In the event the patent office would cite the round Edison bulb against your square one as prior art to demonstrate that your invention was not novel, they might be incorrect. However, if there exists an invention that is identical to yours in each and every way your invention lacks novelty and it is not patentable.
Typically, the novelty requirement is very simple to overcome, since any slight variation in shape, size, blend of elements, etc. will satisfy it. However, however the invention is novel, it could fail another requirement stated earlier: “non-obviousness.” So, in the event that your invention overcomes the novelty requirement, do not celebrate yet — it is actually more challenging to satisfy the non-obviousness requirement.
B) Non-obviousness: As stated before, the novelty requirement is the easy obstacle to get over within the pursuit of a patent. Indeed, if novelty were the only requirement to satisfy, then just about everything conceivable may be patented so long as it differed slightly coming from all previously developed conceptions. Accordingly, a much more difficult, complex requirement must be satisfied right after the novelty real question is met. This second requirement is called “non-obviousness.”
The non-obviousness requirement states to some extent that although an invention as well as the related prior art might not be “identical” (which means that the invention is novel with respect 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 particular invention.
This really is in fact 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 not — it is more often than not quite evident whether any differences exist in between your invention and the prior art.With this point there is absolutely no room for subjective opinion. Regarding non-obviousness, however, there is certainly a substantial amount of room for various opinions, because the requirement is inherently subjective: differing people, including different Examiners at the Patent Office, will have different opinions regarding if the invention is truly obvious.
Some common samples of things which are not usually considered significant, and thus which can be usually considered “obvious” include: the mere substitution of materials to make something lighter in weight; changing the size or color; combining pieces of the type commonly found together; substituting one well-known component for another similar component, etc.
IV. What is considered prior art through 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 getting a patent. Quite simply, it defines exactly those ideas which the PTO can cite against you in an attempt to prove that the invention is not really in fact novel or to show that your invention is obvious. These eight sections could be broken down into an organized and understandable format composed of two main categories: prior art which is dated before your date of “invention” (thus showing that you are not the initial inventor); and prior art which dates back prior to your “filing date” (thus showing which you may have waited very long to file for any patent).
A) Prior art which dates back prior to your date of invention: It could seem to sound right that when prior art exists which dates before your date of invention, you should not be entitled to have a patent on that invention as you would not truly function as the first inventor. Section 102(a) from the patent law specifically describes the things which can be used as prior art if 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, just before your date of invention. Even when there is no patent or written documentation showing that the invention was known in the usa, the PTO may still reject your patent application under section 102(a) as lacking novelty when they can show that your invention was generally proven to people prior to your date of invention.
2) Public use in the usa: Use by others from the invention you are attempting to patent in public in america, before your date of invention, may be held against your patent application through the PTO. This ought to make clear sense, since if someone else was publicly using the invention before you even conceived of it, you obviously cannot be the first and first inventor from it, and you do not need to receive a patent for this.
3) Patented in the United States or abroad: Any United States or foreign patents which issued prior to your date of invention and which disclose your invention is going to 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 may use any patents which disclose an identical 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 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 are certainly not the first inventor (since somebody else thought of it before you decide to) and you also are not entitled to patent into it.
B)Prior art which goes back prior to your filing date: As noted above, prior art was defined as everything known just before your conception of the invention or everything known to the public multiple year before your filing of a patent application. Therefore that in many circumstances, even when you were the first to have conceived/invented something, you will be unable to get a patent on it if this has entered the arena of public knowledge and more than one year has passed between that time and your filing of a patent application. The goal of this rule is to persuade folks to try to get patents on their inventions at the earliest opportunity or risk losing them forever. Section 102(b) from the patent law defines specifically those kinds of prior art which can be used against you being a “one-year bar” the following:
1) Commercial activity in america: In the event the invention you intend to patent was sold or offered available for sale in the usa several year before you decide to file a patent application, then you definitely are “barred” from ever getting a patent on the invention.
EXAMPLE: you conceive of your own invention on January 1, 2008, and provide it available 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 (one year from your day you offered it on the market).In the event 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 more than one year prior to your filing date.This will be the case if somebody 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 for sale publicly.You just kept it to yourself.Also assume that on February 1, 2008, somebody else conceived of your own invention and began selling it. This starts your twelve months clock running!If you do not file a patent on the invention by February 2, 2009, (twelve months from your date another person began selling it) then you also is going to be forever barred from obtaining a patent. Note that this provision of the law prevents from acquiring a patent, despite the fact that there is absolutely no prior art dating back to before your date of conception and you also truly are the very first inventor (thus satisfying 102(a)), mainly because the invention was accessible to the public for more than 1 year before your filing date because of one other person’s sale.Accordingly, “section 102(b) one-year bars” can ruin your odds of getting a patent even though you are the first inventor and have satisfied section 102(a).
2) Public use in the usa: When the invention you wish to Review For Inventhelp was applied in the usa by you or some other several year before your filing of the patent application, then you are “barred” from ever acquiring a patent on your invention. Typical samples of public use are when you or another person display and use the invention in a trade event or public gathering, on tv, or anywhere else where most people has potential access.People use do not need to be the one that specifically plans to create the public aware of the invention. Any use which can be potentially accessed from the public will suffice to start 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 other printed publication on your part or by another individual, offered to the public in america or abroad multiple year before your filing date, will prevent you from acquiring a patent on the invention.Note that even a post published by you, concerning your own invention, begins usually the one-year clock running.So, for instance, in the event you detailed your invention in a natmlt release and mailed it all out, this might start usually the one-year clock running.So too would the main one-year clock start running for you if a complete stranger published a printed article about the main topic of your invention.
4) Patented in america or abroad: In case a United States or foreign patent covering your invention issued more than a year prior to your filing date, you may be barred from acquiring a patent. Compare this with the previous section regarding U . S . and foreign patents which states that, under 102(a) in the patent law, you are prohibited from getting a patent when the filing date of another patent is sooner than your date of invention. Under 102(b) which we have been discussing here, you are unable to get a patent with an invention that was disclosed in another patent issued over a year ago, even if your date of invention was prior to the filing date of the patent.