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 in which the U . S . 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 good example will be the forced break-up of Bell Telephone some in the past in to the many regional phone companies. The 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 on the telephone industry.
Why, then, would the federal government permit a monopoly in the form of How To Patent Ideas? The government makes an exception to encourage inventors to come forward with their creations. In doing so, the government actually promotes advancements in science and technology.
To start with, it ought to be clear to you just how a patent behaves as a “monopoly. “A patent permits the owner in the patent to stop other people from producing the product or utilizing the process covered by the patent. Consider Thomas Edison and his most well-known patented invention, the light bulb. With his patent for your bulb, Thomas Edison could prevent every other person or company from producing, using or selling bulbs without his permission. Essentially, no person could contest with him in the light business, and hence he possessed a monopoly.
However, to be able to receive his monopoly, Thomas Edison were required to give something in turn. He required to fully “disclose” his invention towards the public.
To acquire a United States Patent, an inventor must fully disclose exactly what the invention is, the actual way it operates, and the best way known from the inventor to really make it.It is actually this disclosure to the public which entitles the inventor to some monopoly.The logic for accomplishing this is that by promising inventors a monopoly in exchange for disclosures for the public, inventors will continually attempt to develop technologies and disclose them to the general public. Providing them with the monopoly enables them to profit financially from the invention. Without this “tradeoff,” there would be few incentives to develop new technologies, because without having a patent monopoly an inventor’s hard work would bring him no financial reward.Fearing that their invention will be stolen once they attempt to commercialize it, the inventor might never tell a soul about their invention, and the public would never benefit.
The grant of rights within patent can last for a restricted period.Utility patents expire twenty years after they are filed.If this type of was not the case, and patent monopolies lasted indefinitely, there could be serious consequences. For instance, if Thomas Edison still held an in-force patent for the bulb, we might probably need to pay about $300 to get an easy bulb today.Without competition, there would be little incentive for Edison to improve upon his light.Instead, once the Edison bulb patent expired, everyone was able to manufacture bulbs, and several companies did.The vigorous competition to do just that after expiration in the Edison patent led to better quality, lower costing light bulbs.
Varieties of patents. There are 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 which have a “functional” aspect (in other words, the invention accomplishes a utilitarian result — it actually “does” something).Put simply, one thing which is different or “special” concerning the invention must be for any functional purpose.To be eligible for utility patent protection, an invention also must fall within a minumum of one from the following “statutory categories” as required under 35 USC 101. Take into account that virtually any physical, functional invention will fall into one or more of such categories, so that 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 their physical parts, like a can opener, a car engine, a fax machine, etc.It is the combination and interconnection of such physical parts in which we have been concerned and which can be protected through the New Invention Ideas.
B) Article of manufacture: “articles of manufacture” should be regarded as items that accomplish a job like a machine, but without the interaction of various physical parts.While articles of manufacture and machines may are most often similar in many cases, it is possible to distinguish the 2 by considering articles of manufacture as increasing numbers of simplistic things that routinely have no moving parts. A paper clip, for example is definitely an article of manufacture.It accomplishes a job (holding papers together), but is clearly not just a “machine” as it is a simple device which fails to rely on the interaction of various parts.
C) Process: a means of performing something through a number of steps, each step interacting in some manner having a physical element, is actually a “process.” A process can be a new method of manufacturing a known product or can also be a new use to get a known product. Board games are generally protected being a process.
D) Composition of matter: typically chemical compositions including pharmaceuticals, mixtures, or compounds like soap, concrete, paint, plastic, and the like may 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 can be protected by way of a utility patent. In other words, when the invention is actually a useful object that includes a novel shape or overall look, a design patent might supply the appropriate protection. To avoid infringement, a copier would need to produce a version that fails to look “substantially just like the ordinary observer.”They cannot copy the design and overall look without infringing the design patent.
A provisional patent application is actually a step toward acquiring a utility patent, where the invention might not exactly yet anticipate to get a utility patent. Quite simply, when it seems as if the invention cannot yet get yourself a utility patent, the provisional application might be filed within the Patent Office to build the inventor’s priority for the invention.Since the inventor will continue to develop the invention making further developments that allow a utility patent to be obtained, then your inventor can “convert” the provisional application to your full utility application. This later application is “given credit” for that date if the provisional application was first filed.
A provisional patent has several advantages:
A) Patent Pending Status: The most well known benefit of a Provisional Patent Application is it allows the inventor to right away begin marking the item “patent pending.” It has a time-proven tremendous commercial value, like the “as seen on television” label which can be placed on many products. A product or service bearing these two phrases clearly possesses a commercial marketing advantage from the very beginning.
B) Capacity to enhance the invention: After filing the provisional application, the inventor has 1 year to “convert” the provisional right into a “full blown” utility application.In that year, the inventor need to commercialize the product and assess its potential. When the product appears commercially viable during that year, then your inventor is motivated to convert the provisional application into a utility application.However, unlike an ordinary utility application which should not be changed by any means, a provisional application might have additional material added to it to boost 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 from the product may 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.” Quite simply, the date the provisional is filed becomes the invention’s filing date, for the later filed/converted utility patent.
Requirements for obtaining a utility patent. When you are sure that your invention is actually a potential candidate to get a utility patent (since 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.” Both of these requirements are essentially concerned with whether your invention is new, and if so, whether there exists a substantial distinction between it and similar products within the related field.
A) Novelty: To have a utility patent, you need to initially decide if your invention is “novel”. Quite simply, is your invention new?Are you currently the very first person to possess looked at it? For instance, if you decide to apply for a patent on the light bulb, it seems like quite clear that you would not really entitled to a patent, considering that the light will not be a new invention. The Patent Office, after receiving the application, would reject it based upon the reality that Edison invented the sunshine bulb a long time 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” before your conception of the invention or everything proven to people multiple year before you decide to file a patent application for the invention).
For your invention to get novel regarding other inventions on earth (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 actually be novel when compared to the Edison light bulb (since his was round/elliptical). If the patent office would cite the round Edison light against your square one as prior art to exhibit that your particular invention had not been novel, they could be incorrect. However, if there exists an invention that is identical to yours in each and every way your invention lacks novelty and is also not patentable.
Typically, the novelty requirement is very easy to overcome, since any slight variation in shape, size, mixture of elements, etc. will satisfy it. However, although the invention is novel, it could fail one other requirement stated earlier: “non-obviousness.” So, in the event that your invention overcomes the novelty requirement, usually do not celebrate yet — it really is more challenging to fulfill the non-obviousness requirement.
B) Non-obviousness: As pointed out above, the novelty requirement is definitely the easy obstacle to beat in the quest for a patent. Indeed, if novelty were the only requirement to satisfy, then just about anything conceivable may be patented as long as it differed slightly from all previously developed conceptions. Accordingly, a much more difficult, complex requirement has to be satisfied right after the novelty real question is met. This second requirement is called “non-obviousness.”
The non-obviousness requirement states in part that although an invention and also the related prior art might not be “identical” (which means the invention is novel with respect to the prior art), the invention may nevertheless be unpatentable in the event the differences between it and the related prior art could be considered “obvious” to someone having ordinary skill in the field of the actual invention.
This is 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 really is more often than not quite evident whether any differences exist in between your invention and also the prior art.With this point there is not any room for subjective opinion. Regarding non-obviousness, however, there exists a substantial amount of room for various opinions, because the requirement is inherently subjective: differing people, including different Examiners on the Patent Office, may have different opinions regarding if the invention is truly obvious.
Some common samples of things that usually are not usually considered significant, and so that are usually considered “obvious” include: the mere substitution of materials to make something lighter in weight; changing the dimensions or color; combining pieces of the type commonly found together; substituting one well-known component for another similar component, etc.
IV. Precisely what is considered prior art from the Patent Office?
The patent laws, specifically 35 U.S.C. section 102, outline eight major types of prior art which can be used to keep you from acquiring a patent. Quite simply, it defines exactly those ideas that the PTO can cite against you in an effort to prove that your invention is not actually novel or reveal that your invention is obvious. These eight sections could 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 first inventor); and prior art which extends back prior to your “filing date” (thus showing which you might have waited very long to submit for a patent).
A) Prior art which extends back prior to your date of invention: It would appear to seem sensible that if 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) in the patent law specifically describes the points which bring prior art if they occur before your date of invention:
1) Public knowledge in the usa: Any evidence that your invention was “known” by others, in the usa, before your date of invention. Even when there is no patent or written documentation showing that your invention was known in the usa, the PTO might still reject your patent application under section 102(a) as lacking novelty if they can reveal that your invention was generally proven to people just before your date of invention.
2) Public use in the United States: Use by others in the invention you are trying to patent in public in america, before your date of invention, can be held against your patent application by the PTO. This will make clear sense, since if a person else was publicly making use of the invention before you even conceived of this, you obviously cannot be the original and first inventor of it, and you do not deserve to receive a patent for it.
3) Patented in the United States or abroad: Any U . S . or foreign patents which issued prior to your date of invention and which disclose your invention will be used against your patent application by the PTO. For instance, believe 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, 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 (such as books, newspapers, magazines, trade journals, etc.) which disclose your invention and were published just before your date of invention will stop you from acquiring a patent.Again, the reasoning here is when your conception was described publicly in a printed publication, then you certainly are not the very first inventor (since somebody else thought of it prior to deciding to) and you are not eligible to 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 of the invention or everything known to the general public several year before your filing of a patent application. What this means is that in numerous circumstances, even if you were the first to have conceived/invented something, you will be unable to get a patent onto it when it has entered the realm of public knowledge and more than one year has gone by between that time as well as your filing of the patent application. The purpose of this rule would be to encourage people to apply for patents on the inventions at the earliest opportunity or risk losing them forever. Section 102(b) from the patent law defines specifically those types of prior art which is often used against you as a “one-year bar” the following:
1) Commercial activity in the United States: If the invention you wish to patent was sold or offered available for sale in america several year before you decide to file a patent application, then you are “barred” from ever acquiring a patent on your own 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 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 on the market).If you file your patent application on January 4, 2009, for instance, the PTO will reject your application as being barred as it was offered on the market more than one year before your filing date.This would be the case if a person apart from yourself begins selling your invention. Assume still that you conceived your invention on January 1, 2008, but failed to sell or offer it on the market publicly.You merely kept it to yourself.Also assume that on February 1, 2008, somebody else conceived of your invention and began selling it. This starts your 1 year clock running!If you do not file a patent on the invention by February 2, 2009, (one year through the date one other person began selling it) then you also is going to be forever barred from obtaining a patent. Be aware that this provision in the law prevents from acquiring a patent, despite the fact that there is not any prior art dating back to before your date of conception and you also really are 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 due to the 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 intend to Invention was applied in america on your part or some other multiple year before your filing of any patent application, then you definitely are “barred” from ever acquiring a patent on your own invention. Typical types of public use are when you or somebody else display and utilize the invention in a trade show or public gathering, on tv, or elsewhere where most people has potential access.The public use will not need to be one that specifically promises to have the public mindful of the invention. Any use which may be potentially accessed by the public will suffice to begin usually the one year clock running (but a secret use will most likely not invoke the main one-year rule).
3) Printed publication in the usa or abroad: Any newspaper article, magazine article, trade paper, academic thesis or some other printed publication on your part or by someone else, offered to people in america or abroad several year before your filing date, will stop you from acquiring a patent on the invention.Be aware that even a post authored by you, regarding your own invention, will begin the main one-year clock running.So, as an example, if you detailed your invention in a natmlt release and mailed it all out, this might start the one-year clock running.So too would the one-year clock start running to suit your needs when a complete stranger published a printed article about the main topic of your invention.
4) Patented in the usa or abroad: When a United States Of America or foreign patent covering your invention issued more than a year before your filing date, you will end up barred from acquiring a patent. Compare this using the previous section regarding United States and foreign patents which states that, under 102(a) from the patent law, you are prohibited from obtaining a patent in the event the filing date of some other patent is earlier than your date of invention. Under 102(b) which our company is discussing here, you can not get yourself a patent with an invention which was disclosed in another patent issued over a year ago, even if your date of invention was before the filing date of the patent.