What is a patent? A U . S . Patent is essentially a “grant of rights” for a limited period. In layman’s terms, it is acontract where the U . S . government expressly permits someone or company to monopolize a certain concept for a very limited time. Typically, our government frowns upon any sort of monopolization in commerce, as a result of belief that monopolization hinders free trade and competition, degrading our economy. A great example is the forced break-up of Bell Telephone some years back into the many regional phone companies. The us government, in particular 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 over the telephone industry.
Why, then, would the federal government permit a monopoly as a patent? The federal government makes an exception to encourage inventors ahead forward making use of their creations. By doing this, the government actually promotes advancements in science and technology.
To start with, it ought to be clear to you just how a patent acts as a “monopoly. “A patent permits the owner from the Make A New Invention to prevent someone else from producing the merchandise or making use of the process covered by the patent. Think about Thomas Edison and his most popular patented invention, the light bulb. Together with his patent for that light bulb, Thomas Edison could prevent every other person or company from producing, using or selling light bulbs without his permission. Essentially, nobody could contend with him inside the light bulb business, and hence he possessed a monopoly.
However, in order to obtain his monopoly, Thomas Edison needed to give something in turn. He needed to fully “disclose” his invention to the public. To have a United States Of America Patent, an inventor must fully disclose exactly what the invention is, how it operates, and the easiest way known by the inventor to really make it.It is this disclosure to 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 his or her disclosures to the public, inventors will continually make an effort to develop technologies and disclose these to the public. Providing them with the monopoly allows them to profit financially from your invention. Without it “tradeoff,” there could be few incentives to develop technologies, because with no patent monopoly an inventor’s hard work will bring him no financial reward.Fearing that the invention could be stolen when they try 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 limited period.Utility patents expire twenty years after they are filed.If this type of was not the case, and patent monopolies lasted indefinitely, there will be serious consequences. For example, if Thomas Edison still held an in-force patent for that light bulb, we might probably have to pay about $300 to purchase a light bulb today.Without competition, there could be little incentive for Edison to enhance upon his light bulb.Instead, after the Edison light bulb patent expired, everyone was able to manufacture light bulbs, and many companies did.The vigorous competition to do just that after expiration of the Inventhelp Success resulted in higher quality, lower costing light bulbs.
II. Types of patents
You can 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 (put simply, the invention accomplishes a utilitarian result — it actually “does” something).Quite simply, one thing which is different or “special” concerning the invention has to be for a functional purpose.To qualify for utility patent protection, an invention must also fall within at least one from the following “statutory categories” as required under 35 USC 101. Stay in mind that just about any physical, functional invention will fall into one or more of these categories, so that you do not need to be worried about which category best describes your invention.
A) Machine: consider a “machine” as something which accomplishes a task 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 such physical parts that our company is concerned and which can be protected by the patent.
B) Article of manufacture: “articles of manufacture” needs to be looked at as items that accomplish an activity just like a machine, but without the interaction of numerous physical parts.While articles of manufacture and machines may appear to be similar in many cases, you can distinguish the 2 by thinking about articles of manufacture as more simplistic things which normally have no moving parts. A paper clip, for instance is surely an article of manufacture.It accomplishes a job (holding papers together), but is clearly not a “machine” because it is a simple device which does not rely on the interaction of numerous parts.
C) Process: an easy method of doing something through one or more steps, each step interacting somehow using a physical element, is actually a “process.” An activity can be considered a new approach to manufacturing a known product or can even become a new use to get a known product. Board games are generally protected as a process.
D) Composition of matter: typically chemical compositions such as 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 tend to be protected in this fashion.
A design patent protects the “ornamental appearance” of an object, rather than its “utility” or function, which is protected with a utility patent. Quite simply, in the event the invention is a useful object which has a novel shape or overall look, a design patent might give you the appropriate protection. In order to avoid infringement, a copier would have to create a version that fails to look “substantially like the ordinary observer.”They cannot copy the form and overall appearance without infringing the style patent.
A provisional patent application is really a step toward obtaining a utility patent, in which the invention might not yet anticipate to obtain a utility patent. In other words, if this seems as though the invention cannot yet get a utility patent, the provisional application may be filed within the Patent Office to determine the inventor’s priority for the invention.Since the inventor consistently develop the invention and make further developments which allow a utility patent to be obtained, then this inventor can “convert” the provisional application to some full utility application. This later application is “given credit” for that date if the provisional application was initially 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.” It has an occasion-proven tremendous commercial value, similar to the “as seen in the media” label that is placed on many products. An item bearing these two phrases clearly possesses a professional marketing advantage right from the beginning.
B) Capacity to improve the invention: After filing the provisional application, the inventor has one year to “convert” the provisional right into a “full blown” utility application.During that year, the inventor need to commercialize the product and assess its potential. If the product appears commercially viable in that year, then your inventor is asked to convert the provisional application right into a utility application.However, unlike a normal utility application which can not be changed in any respect, a provisional application may have additional material included in it to boost it upon its conversion within twelve months.Accordingly, any helpful tips or tips that were obtained from the inventor or his marketing/advertising agents during commercialization from the product can be implemented and protected during those times.
C) Establishment of the filing date: The provisional patent application offers the inventor using a crucial “filing date.” Put simply, the date that the provisional is filed becomes the invention’s filing date, even for your later filed/converted utility patent.
III. Requirements for getting a utility patent. Once you are certain your invention is really a potential candidate for any utility patent (as it fits within one of the statutory classes), you ought to then move ahead to assess whether your invention can satisfy two key requirements — “novelty” and “unobviousness.” These two requirements are essentially concerned with whether your invention is completely new, and when so, whether there exists a substantial distinction between it and similar products in the related field.
A) Novelty: To acquire a utility patent, you must initially determine whether your invention is “novel”. Put simply, is the invention new?Have you been the first person to have thought of it? For example, if you were to apply for a patent on the light bulb, it seems quite clear which you would not eligible for a patent, since the light bulb is not really a whole new invention. The Patent Office, after receiving your application, would reject it based upon the reality that Edison invented the light bulb a long time 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” prior to your conception in the invention or everything proven to the general public several year before you file a patent application for your invention).
To 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 more than a similar invention.If you decide to invent a square light bulb, your invention would sometimes be novel compared to the Edison light bulb (since his was round/elliptical). When the patent office would cite the round Edison light bulb against your square one as prior art to show that your 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 also not patentable.
Typically, the novelty requirement is extremely very easy to overcome, since any slight variation fit, size, blend of elements, etc. will satisfy it. However, even even though the invention is novel, it might fail one other requirement stated earlier: “non-obviousness.” So, if you find that your invention overcomes the novelty requirement, do not celebrate yet — it is harder to meet the non-obviousness requirement.
B) Non-obviousness: As pointed out above, the novelty requirement will be the easy obstacle to overcome in the search for How To File 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 of previously developed conceptions. Accordingly, a far more difficult, complex requirement must be satisfied following the novelty question is met. This second requirement is called “non-obviousness.”
The non-obviousness requirement states to some extent that although an invention and also the related prior art might not “identical” (which means that the invention is novel with regards 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 someone having ordinary skill in the field of the actual invention.
This is in actuality the Patent and Trademark Office’s means of subjectively judging the “quality” of an 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 between your invention and also the prior art.On this point there is no room for subjective opinion. Regarding non-obviousness, however, there is quite a bit of room for a number of opinions, since the requirement is inherently subjective: each person, including different Examiners in the Patent Office, may have different opinions regarding whether the invention is really obvious.
Some common types of items that usually are not usually considered significant, and thus which are 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 from the Patent Office?
The patent laws, specifically 35 U.S.C. section 102, outline eight major varieties of prior art which can be employed to stop you from obtaining a patent. Quite simply, it defines exactly those things which the PTO can cite against you in an attempt to prove that your invention is not in fact novel or to show that the invention is obvious. These eight sections can be broken down into an organized and understandable format composed of two main categories: prior art which can be dated before your date of “invention” (thus showing that you are not the first inventor); and prior art which dates back before your “filing date” (thus showing that you simply might have waited too long to file to get a patent).
A) Prior art which dates back before your date of invention: It would manage to sound right that in case prior art exists which dates before your date of invention, you should not be entitled to obtain a patent on that invention because you would not truly become 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 United States: Any evidence that your particular 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 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 the invention was generally known to the general public prior to your date of invention.
2) Public use in the United States: Use by others from the invention you are attempting to patent in public places in america, prior to your date of invention, can take place against your patent application through the PTO. This will make clear sense, since if a person else was publicly utilizing the invention before you even conceived of it, you obviously can not be the first and first inventor from it, and you do not deserve to get a patent for it.
3) Patented in america or abroad: Any U . S . or foreign patents which issued before your date of invention and which disclose your invention will likely be used against your patent application from the PTO. As an example, think 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, 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 or foreignprinted publications (like books, newspapers, magazines, trade journals, etc.) which disclose your invention and were published just before your date of invention will keep you from obtaining a patent.Again, the reasoning here is that if your conception was described publicly in a printed publication, then you are not the first inventor (since someone else looked at it before you) and also you usually are not entitled to patent onto it.
B)Prior art which dates back before your filing date: As noted above, prior art was considered everything known before your conception in the invention or everything known to people 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 may be unable to acquire a patent on it if this has entered the realm of public knowledge and over twelve months has gone by between that point along with your filing of any patent application. The purpose of this rule is always to encourage people to apply for patents on the inventions at the earliest opportunity or risk losing them forever. Section 102(b) in the patent law defines specifically those varieties of prior art which can be used against you as a “one-year bar” as follows:
1) Commercial activity in the usa: If the invention you want to patent was sold or offered available for sale in the United States more than one year before you file a patent application, then you definitely are “barred” from ever getting a patent on your invention.
EXAMPLE: you conceive of the invention on January 1, 2008, and provide it for sale on January 3, 2008, so as to raise some funds to apply for a patent. You must file your patent application no later than January 3, 2009 (1 year through the day you offered it for sale).If you file your patent application on January 4, 2009, as an example, the PTO will reject the application as being barred as it was offered on the market more than one year just before your filing date.This too would be the case if someone besides yourself begins selling your invention. Assume still which you conceived your invention on January 1, 2008, but failed to sell or offer it for sale publicly.You just kept it to yourself.Also think that on February 1, 2008, somebody else conceived of your 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, (one year from your date the other person began selling it) then you also will be forever barred from getting a patent. Note this provision in the law prevents you against acquiring a patent, even though there is no prior art dating back to before your date of conception and you truly are the first inventor (thus satisfying 102(a)), simply because the invention was accessible to the general public 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 acquiring a patent even though you happen to be first inventor and have satisfied section 102(a).
2) Public use in the usa: If the invention you want to patent was utilized in the United States by you or some other several year before your filing of the patent application, then you are “barred” from ever acquiring a patent on the invention. Typical samples of public use are whenever you or somebody else display and utilize the invention in a trade show or public gathering, on tv, or anywhere else where general public has potential access.People use do not need to be one which specifically promises to create the public conscious 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 the usa or abroad: Any newspaper article, magazine article, trade paper, academic thesis or any other printed publication by you or by someone else, available to the public in america or abroad more than one year before your filing date, will keep you from getting a patent on the invention.Note that even a write-up published by you, regarding your own invention, will start the one-year clock running.So, as an example, should you detailed your invention in a press ndefzr and mailed it, this could start the main 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 the United States or abroad: When a United States or foreign patent covering your invention issued spanning a year just before your filing date, you may be barred from getting a patent. Compare this using the previous section regarding United States and foreign patents which states that, under 102(a) of the patent law, you happen to be 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 are discussing here, you can not get yourself a patent with an invention which was disclosed in another patent issued over a year ago, even in case your date of invention was before the filing date of this patent.