What is a patent? A United States Patent is basically a “grant of rights” for a limited period. In layman’s terms, it is acontract where the United States Of America government expressly permits an individual or company to monopolize a certain concept for a very limited time. Typically, our government frowns upon any sort of monopolization in commerce, because of the 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 us government permit a monopoly as a patent? The us government makes an exception to encourage inventors ahead forward using their creations. By doing this, the federal government actually promotes advancements in science and technology.
To start with, it needs to be clear to you personally just how a patent works as a “monopoly. “A patent permits the property owner of the I Have An Idea For An Invention to stop anyone else from producing the product or using the process included in the patent. Consider Thomas Edison along with his most famous patented invention, the light bulb. Together with his patent for that light bulb, Thomas Edison could prevent some 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, so therefore he possessed a monopoly.
However, in order to get his monopoly, Thomas Edison had to give something in turn. He needed 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 most effective way known through the inventor making it.It is actually this disclosure towards the public which entitles the inventor to some monopoly.The logic for doing this is the fact that by promising inventors a monopoly in turn for their disclosures towards the public, inventors will continually make an effort to develop new technologies and disclose them to the general public. Providing these with the monopoly allows them to profit financially from your invention. Without it “tradeoff,” there will be few incentives to produce technologies, because with no patent monopoly an inventor’s hard work will bring him no financial reward.Fearing their invention would be stolen once they make an effort to commercialize it, the inventor might never tell a soul regarding their invention, as well as the public would not benefit.
The grant of rights under a patent will last for a restricted period.Utility patents expire 20 years when they are filed.If this type of was not the case, and patent monopolies lasted indefinitely, there would be serious consequences. For instance, if Thomas Edison still held an in-force patent for your light bulb, we might probably need to pay about $300 to purchase a light bulb today.Without competition, there could be little incentive for Edison to boost upon his light bulb.Instead, once the Edison light bulb patent expired, everyone was free to manufacture light bulbs, and many companies did.The vigorous competition to perform just that after expiration in the Invention Websites resulted in higher quality, lower costing light bulbs.
II. Kinds 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 relates to inventions that have a “functional” aspect (put simply, the invention accomplishes a utilitarian result — it really “does” something).Quite simply, the thing which can be different or “special” regarding the invention must be to get 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 a minumum of one of such categories, which means you need not be concerned with which category best describes your invention.
A) Machine: consider a “machine” as something which accomplishes a task because of the interaction of its physical parts, like a can opener, a vehicle engine, a fax machine, etc.This is the combination and interconnection of these physical parts with which our company is concerned and which can be protected from the patent.
B) Article of manufacture: “articles of manufacture” ought to be thought of as things which accomplish an activity just like a machine, but minus the interaction of numerous physical parts.While articles of manufacture and machines may are most often similar in many cases, you can distinguish both by considering articles of manufacture as more simplistic things that normally have no moving parts. A paper clip, as an example is definitely an article of manufacture.It accomplishes an activity (holding papers together), but is clearly not a “machine” since it is an easy device which will not rely on the interaction of varied parts.
C) Process: an easy method of performing something through one or more steps, each step interacting in some way using a physical element, is regarded as a “process.” A process 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 including pharmaceuticals, mixtures, or compounds like soap, concrete, paint, plastic, as well as the like can be patented as “compositions of matter.” Food items and recipes are frequently protected in this way.
A design patent protects the “ornamental appearance” of the object, as opposed to its “utility” or function, that is protected by a utility patent. In other words, when the invention is really 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 will have to create a version that will not look “substantially just like the ordinary observer.”They cannot copy the form and overall look without infringing the style patent.
A provisional patent application is a step toward obtaining a utility patent, where the invention might not yet be ready to obtain a utility patent. Put simply, when it seems as though the invention cannot yet get yourself a utility patent, the provisional application may be filed in the Patent Office to build the inventor’s priority for the invention.Because the inventor will continue to develop the invention making further developments which permit a utility patent to become obtained, then this 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 initially filed.
A provisional patent has several benefits:
A) Patent Pending Status: By far the most well-known benefit of a Provisional Patent Application is it allows the inventor to immediately begin marking the product “patent pending.” It has an occasion-proven tremendous commercial value, like the “as seen in the media” label which is placed on many products. A product bearing these two phrases clearly possesses a professional marketing advantage right from the beginning.
B) Capability to increase the invention: After filing the provisional application, the inventor has twelve months to “convert” the provisional right into a “full blown” utility application.In that year, the inventor should try to commercialize the product and assess its potential. If the product appears commercially viable in that year, then this inventor is encouraged to convert the provisional application right into a utility application.However, unlike a typical utility application which should not be changed in any respect, a provisional application may have additional material included in it to boost it upon its conversion within one year.Accordingly, any helpful tips or tips which were obtained by the inventor or his marketing/advertising agents during commercialization of the product can be implemented and guarded during those times.
C) Establishment of any filing date: The provisional patent application also provides the inventor with a crucial “filing date.” In other words, the date the provisional is filed becomes the invention’s filing date, even for your later filed/converted utility patent.
III. Requirements for acquiring a utility patent. Once you are certain that your invention is really a potential candidate to get a utility patent (since it fits within among the statutory classes), you should then move ahead to evaluate whether your invention can satisfy two key requirements — “novelty” and “unobviousness.” These two requirements are essentially worried about whether your invention is totally new, and when so, whether you will find a substantial difference between it and other products inside the related field.
A) Novelty: To obtain a utility patent, you need to initially decide if 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 make application for a patent on the light bulb, it seems like quite clear that you simply would not eligible to a patent, since the light bulb is not really a whole new invention. The Patent Office, after receiving your application, would reject it based on 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” just before your conception from the invention or everything known to the general public several year before you file a patent application for the invention).
To your invention to be novel with respect to other inventions on the planet (prior art), it has to simply 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 really be novel when compared to the Edison light bulb (since his was round/elliptical). In the event the patent office would cite the round Edison light bulb against your square one as prior art to show that the invention had not been novel, they might be incorrect. However, if there exists an invention which can be identical to yours in each and 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 in shape, size, blend of elements, etc. will satisfy it. However, even although 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 harder to meet the non-obviousness requirement.
B) Non-obviousness: As mentioned above, the novelty requirement is the easy obstacle to get over within the search for Idea Inventhelp. Indeed, if novelty were the sole requirement in order to satisfy, then almost anything conceivable might be patented as long because it differed slightly from all previously developed conceptions. Accordingly, a more difficult, complex requirement has to be satisfied following the novelty real question is met. This second requirement is referred to as “non-obviousness.”
The non-obviousness requirement states in part that although an invention and the related prior art might not “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 would be considered “obvious” to someone having ordinary skill in the area of the actual invention.
This is in actuality the Patent and Trademark Office’s means of subjectively judging the “quality” of the invention. Clearly the PTO has no latitude in judging whether your invention is novel or otherwise — it is more often than not quite evident whether any differences exist involving the invention and also the prior art.On this point there is absolutely 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: different people, including different Examiners on the Patent Office, could have different opinions regarding if the invention is really obvious.
Some common types of items that are certainly not usually considered significant, and thus which can be usually considered “obvious” include: the mere substitution of materials to create something much lighter; changing the size or color; combining pieces of what type commonly found together; substituting one well-known component for an additional similar component, etc.
IV. What exactly 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 utilized to keep you from getting a patent. Quite simply, it defines exactly those things that 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 can be broken down into an organized and understandable format consisting of two main categories: prior art which can be dated before your date of “invention” (thus showing that you are currently not the initial inventor); and prior art which dates back before your “filing date” (thus showing which you might have waited too long to file for any patent).
A) Prior art which dates back before your date of invention: It could manage to seem sensible that when 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) from the patent law specifically describes the things which can be utilized as prior art if they occur before your date of invention:
1) Public knowledge in america: Any evidence that your particular invention was “known” by others, in the United States, just 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 if they can show that your particular invention was generally proven to the general public just before your date of invention.
2) Public use in the usa: Use by others of the invention you are trying to patent in public in the usa, prior to your date of invention, can take place against your patent application from the PTO. This should make clear sense, since if someone else was publicly using the invention before you even conceived of this, you obviously should not be the original and first inventor of it, and you do not deserve to obtain 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 is going to be used against your patent application through the PTO. For example, assume 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 Of America 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 (including books, newspapers, magazines, trade journals, etc.) which disclose your invention and were published before your date of invention will stop you from getting a patent.Again, the reasoning here is when your conception was described publicly in a printed publication, then you definitely usually are not the very first inventor (since another person looked at it before you) and also you are not eligible for patent onto it.
B)Prior art which dates back prior to your filing date: As noted above, prior art was considered everything known before your conception from the invention or everything known to the general public multiple year before your filing of any patent application. What this means is that in lots of circumstances, even although you were the first to have conceived/invented something, you will end up unable to obtain a patent into it when it has entered the world of public knowledge and over one year has passed between that point as well as your filing of any patent application. The goal of this rule is always to persuade folks to get patents on their own inventions as quickly as possible or risk losing them forever. Section 102(b) in the patent law defines specifically those types of prior art which can be applied against you as a “one-year bar” the following:
1) Commercial activity in america: When the invention you intend to patent was sold or offered for sale in america several year before you file a patent application, then you are “barred” from ever acquiring a patent on your invention.
EXAMPLE: you conceive of your invention on January 1, 2008, and offer 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 (twelve months through the day you offered it on the market).In the event you file your patent application on January 4, 2009, as an example, the PTO will reject the application as being barred since it was offered available for sale multiple year before your filing date.This too would be the case if a person apart from yourself begins selling your invention. Assume still which 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 assume that on February 1, 2008, another person conceived of the invention and began selling it. This starts your twelve months clock running!If you do not file a patent on your invention by February 2, 2009, (twelve months from the date another person began selling it) then you definitely also is going to be forever barred from obtaining a patent. Note that the provision from the law prevents you from obtaining a patent, even though there is not any prior art dating back to before your date of conception and also you are indeed the first inventor (thus satisfying 102(a)), for the reason that the invention was accessible to the public for more than one year 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 obtaining a patent even though you happen to be first inventor and also have satisfied section 102(a).
2) Public use in the usa: In the event the invention you intend to patent was applied in the usa by you or some other more than one year before your filing of the patent application, then you are “barred” from ever getting a patent on the invention. Typical samples of public use are once you or another person display and make use of the invention in a trade show or public gathering, on tv, or elsewhere in which the general public has potential access.The general public use need not be the one that specifically plans to make the public conscious of the invention. Any use which can be potentially accessed through the public will suffice to begin with the one year clock running (but a secret use will most likely not invoke the main one-year rule).
3) Printed publication in the United States or abroad: Any newspaper article, magazine article, trade paper, academic thesis or any other printed publication by you or by another person, available to the general public in the usa or abroad several year before your filing date, will prevent you from acquiring a patent on the invention.Note that even an article authored by you, regarding your own invention, will start the one-year clock running.So, as an example, in the event you detailed your invention in a press ndefzr and mailed it all out, this could start the one-year clock running.So too would the one-year clock start running to suit your needs 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 just before your filing date, you may be barred from obtaining 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 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 can not get a patent with an invention that was disclosed in another patent issued over a year ago, even should your date of invention was before the filing date of the patent.