What is a patent? A United States Of America 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 specific concept for a very limited time.
Typically, our government frowns upon any sort of monopolization in commerce, due to the belief that monopolization hinders free trade and competition, degrading our economy. A good example is definitely the forced break-up of Bell Telephone some years ago in to the many regional phone companies. The government, specifically 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 in the form of File A Patent? The 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 needs to be clear to you just how a patent acts as a “monopoly. “A patent permits the owner of the patent to prevent other people from producing the product or using the process covered by the patent. Consider Thomas Edison and his most famous patented invention, the light bulb. Together with his patent for the light, 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 within the bulb business, and hence he possessed a monopoly.
However, to be able to receive his monopoly, Thomas Edison had to give something in turn. He required to fully “disclose” his invention towards the public.
To have a United States Patent, an inventor must fully disclose exactly what the invention is, the actual way it operates, and the most effective way known through the inventor making it.It really is this disclosure towards the public which entitles the inventor to a monopoly.The logic for carrying this out is the fact that by promising inventors a monopoly in return for disclosures for the public, inventors will continually strive to develop technologies and disclose them to the public. Providing them with the monopoly allows them to profit financially from your invention. Without this “tradeoff,” there could be few incentives to produce new technologies, because without a patent monopoly an inventor’s work would bring him no financial reward.Fearing that the 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 never benefit.
The grant of rights within patent can last for a small period.Utility patents expire 20 years when they are filed.If this type of was incorrect, and patent monopolies lasted indefinitely, there could be serious consequences. As an example, if Thomas Edison still held an in-force patent for that light bulb, we would probably must pay about $300 to buy a mild bulb today.Without competition, there would be little incentive for Edison to boost upon his bulb.Instead, after the Edison bulb patent expired, everybody was free to manufacture light bulbs, and lots of companies did.The vigorous competition to perform just that after expiration in the Edison patent ended in better quality, lower costing bulbs.
Types of patents. You can find essentially three types of patents which you should be aware of — utility patents, design patents, and provisional patent applications. A utility patent relates to inventions which have a “functional” aspect (put simply, the invention accomplishes a utilitarian result — it genuinely “does” something).Put simply, the one thing that is different or “special” about the invention has to be for a functional purpose.To be eligible for utility patent protection, an invention must also fall within a minumum of one of the following “statutory categories” as required under 35 USC 101. Take into account that just about any physical, functional invention will fall under a minumum of one of these categories, so that you do not need to be concerned with which category best describes your invention.
A) Machine: consider a “machine” as something which accomplishes a job as a result of interaction of the physical parts, such as a can opener, a vehicle engine, a fax machine, etc.It is the combination and interconnection of these physical parts that we are concerned and which can be protected by the Inventhelp Inventors.
B) Article of manufacture: “articles of manufacture” should be thought of as things that accomplish a task just like 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 thinking about articles of manufacture as increasing numbers of simplistic items that routinely have no moving parts. A paper clip, for instance is an article of manufacture.It accomplishes a job (holding papers together), but is clearly not a “machine” because it is a basic device which fails to rely on the interaction of numerous parts.
C) Process: an easy method of doing something through several steps, each step interacting somehow using a physical element, is known as a “process.” An activity can be quite a new method of manufacturing a known product or can even be a brand new use for any known product. Board games are typically protected being a process.
D) Composition of matter: typically chemical compositions including pharmaceuticals, mixtures, or compounds like soap, concrete, paint, plastic, and so forth 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 the object, instead of its “utility” or function, which is protected by way of a utility patent. Put 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 will have to produce 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 actually a step toward acquiring a utility patent, where invention may not yet be ready to get a utility patent. Put simply, if it seems as if the invention cannot yet get yourself a utility patent, the provisional application could be filed in the Patent Office to build the inventor’s priority to the invention.Since the inventor consistently develop the invention and make further developments which permit 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 your date when the provisional application was filed.
A provisional patent has several advantages:
A) Patent Pending Status: By far the most well-known benefit of a Provisional Patent Application is that it allows the inventor to instantly begin marking the merchandise “patent pending.” This has a period-proven tremendous commercial value, like the “as seen on television” label which can be applied to many products. An item bearing both these phrases clearly possesses an industrial marketing advantage from the very beginning.
B) Capability to improve the invention: After filing the provisional application, the inventor has twelve months 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. If the product appears commercially viable during that year, then the inventor is asked to convert the provisional application in to a utility application.However, unlike an ordinary utility application which should not be changed in any way, a provisional application could have additional material included in it to improve it upon its conversion within one year.Accordingly, any helpful tips or tips that had been obtained by the inventor or his marketing/advertising agents during commercialization from the product could be implemented and guarded at that time.
C) Establishment of any filing date: The provisional patent application also provides the inventor with a crucial “filing date.” Quite simply, the date that the provisional is filed becomes the invention’s filing date, for the later filed/converted utility patent.
Requirements for getting a utility patent. When you are certain that your invention is a potential candidate for any utility patent (because it fits within among the statutory classes), you need to then move ahead to evaluate whether your invention can satisfy two key requirements — “novelty” and “unobviousness.” These two requirements are essentially focused on whether your invention is completely new, and in case so, whether there exists a substantial distinction between it and other products inside the related field.
A) Novelty: To have a utility patent, you need to initially see whether your invention is “novel”. Put simply, can be your invention new?Are you the initial person to have thought of it? As an example, if you were to obtain a patent on the light bulb, it seems like quite clear that you would not be entitled to a patent, since the bulb will not be a whole new invention. The Patent Office, after receiving your application, would reject it based upon the reality that Edison invented the lighting bulb many years ago. In rejecting your patent application, the Patent Office would actually cite the Edison light patent against you as relevant “prior art” (prior art is everything “known” prior to your conception in the invention or everything proven to people several year before you file a patent application for that invention).
For the invention to be novel with respect to other inventions in the world (prior art), it must simply be different in some minimal way. Any trivial physical difference will suffice to render your invention novel over a similar invention.Should you invent a square light bulb, your invention would actually be novel when compared to the Edison light bulb (since his was round/elliptical). If the patent office were to cite the round Edison bulb against your square one as prior art to demonstrate that your particular invention had not been novel, they could be incorrect. However, if there exists an invention which can be identical to yours in every single way your invention lacks novelty and it is not patentable.
Typically, the novelty requirement is extremely easy to overcome, since any slight variation fit, size, combination of elements, etc. will satisfy it. However, however the invention is novel, it could fail the other requirement mentioned above: “non-obviousness.” So, in the event that your invention overcomes the novelty requirement, do not celebrate yet — it really is more difficult to satisfy the non-obviousness requirement.
B) Non-obviousness: As stated before, the novelty requirement is definitely the easy obstacle to overcome within the quest for a patent. Indeed, if novelty were the only requirement in order to satisfy, then just about everything conceivable could be patented so long as it differed slightly coming from all previously developed conceptions. Accordingly, a more difficult, complex requirement must be satisfied after the novelty question for you is met. This second requirement is called “non-obviousness.”
The non-obviousness requirement states partly that although an invention and also the related prior art may not be “identical” (which means that the invention is novel with respect to the prior art), the invention may nevertheless be unpatentable when the differences between it and the related prior art could be considered “obvious” to someone having ordinary skill in the area of the actual invention.
This can be in fact the Patent and Trademark Office’s way of subjectively judging the “quality” of an invention. Clearly the PTO has no latitude in judging whether your invention is novel or otherwise — it is actually more often than not quite evident whether any differences exist between your invention and the prior art.About this point there is not any room for subjective opinion. Regarding non-obviousness, however, there is certainly a substantial amount of room for many different opinions, since the requirement is inherently subjective: differing people, including different Examiners in the Patent Office, may have different opinions regarding whether or not the invention is definitely obvious.
Some common types of things which are not usually considered significant, and so that are usually considered “obvious” include: the mere substitution of materials to help make something lighter in weight; changing the dimensions or color; combining items of what type commonly found together; substituting one well-known component for another 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 kinds of prior art which could be used to prevent you from acquiring a patent. Put simply, it defines exactly those activities which the PTO can cite against you so as to prove that your invention is not really in fact novel or even to reveal that your invention is obvious. These eight sections may be broken down into an arranged and understandable format composed of two main categories: prior art that is dated before your date of “invention” (thus showing that you are not the initial inventor); and prior art which dates back before your “filing date” (thus showing which you may have waited too much time to submit for a patent).
A) Prior art which dates back prior to your date of invention: It could appear to seem sensible that in case prior art exists which dates before your date of invention, you must not be entitled to acquire a patent on that invention as you would not truly become the first inventor. Section 102(a) in the patent law specifically describes the things which can be used prior art if they occur before your date of invention:
1) Public knowledge in the usa: Any evidence that your particular invention was “known” by others, in the usa, prior to your date of invention. Even if you have no patent or written documentation showing that your particular invention was known in the United States, the PTO may still reject your patent application under section 102(a) as lacking novelty if they can show that your invention was generally known to the general 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 in the usa, before your date of invention, could be held against your patent application from the PTO. This should make clear sense, since if a person else was publicly using the invention even before you conceived of it, you obviously should not be the first and first inventor from it, and you may not deserve to receive a patent for this.
3) Patented in the usa or abroad: Any U . S . or foreign patents which issued prior to your date of invention and which disclose your invention will likely be used against your patent application through the PTO. For example, think 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 United States Of America or abroad: Any United States or foreignprinted publications (such as books, newspapers, magazines, trade journals, etc.) which disclose your invention and were published 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 usually are not the first inventor (since someone else considered it prior to deciding to) and you also are not eligible for patent into it.
B)Prior art which extends back before your filing date: As noted above, prior art was defined as everything known before your conception from the invention or everything proven to the general public more than one year before your filing of the patent application. Therefore that in many circumstances, even when you were the first to have conceived/invented something, you will end up 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 any patent application. The goal of this rule is always to persuade folks to apply for patents on the inventions as soon as possible or risk losing them forever. Section 102(b) of the patent law defines specifically those varieties of prior art which is often used against you as a “one-year bar” as follows:
1) Commercial activity in the United States: In the event the invention you intend to patent was sold or offered for sale in the United States multiple year before you file a patent application, then you certainly are “barred” from ever acquiring a patent on the invention.
EXAMPLE: you conceive of your invention on January 1, 2008, and provide it for sale on January 3, 2008, in an attempt to raise some funds to apply for a patent. You have to file your patent application no later than January 3, 2009 (twelve months through the day you offered it for sale).In the event you file your patent application on January 4, 2009, for instance, the PTO will reject the application as being barred because it was offered on the market several year before your filing date.This too would be the case if somebody besides yourself begins selling your invention. Assume still which you conceived your invention on January 1, 2008, but failed to sell or offer it available for sale publicly.You merely kept it to yourself.Also think that on February 1, 2008, someone 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 through the date one other person began selling it) then you also will likely be forever barred from acquiring a patent. Be aware that this provision from the law prevents you from obtaining a patent, although there is no prior art dating back to to before your date of conception and you also really 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 because of another person’s sale.Accordingly, “section 102(b) one-year bars” can ruin your odds of obtaining a patent even when you are the first inventor and also have satisfied section 102(a).
2) Public use in the United States: When the invention you wish to Inventhelp Tech was used in the United States by you or another more than one year before your filing of a patent application, then you are “barred” from ever getting a patent on your own invention. Typical types of public use are whenever you or somebody else display and use the invention at a trade event or public gathering, on television, or elsewhere where the general public has potential access.People use do not need to be one which specifically plans to have the public aware of the invention. Any use which may be potentially accessed from the public will suffice to begin usually the one year clock running (but a secret use will often 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 on your part or by someone else, offered to people in america or abroad multiple year before your filing date, will stop you from obtaining a patent on your invention.Note that even a post published by you, regarding your own invention, will start usually the one-year clock running.So, as an example, if you detailed your invention in a natmlt release and mailed it all out, this would start the main one-year clock running.So too would usually the one-year clock start running for you in case a complete stranger published a printed article about the subject of your invention.
4) Patented in the usa or abroad: When a United States or foreign patent covering your invention issued over a year before your filing date, you will be barred from acquiring a patent. Compare this with the previous section regarding U . S . and foreign patents which states that, under 102(a) from the patent law, you are prohibited from getting a patent if 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 upon an invention which was disclosed in another patent issued over a year ago, even though your date of invention was before the filing date of the patent.