What is a patent? A United States 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 particular 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 will be the forced break-up of Bell Telephone some years ago into the many regional phone companies. The us government, particularly 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 within the telephone industry.
Why, then, would the us government permit a monopoly by means of Patent Your Idea? The us government makes an exception to encourage inventors to come forward using their creations. In doing so, the government actually promotes advancements in technology and science.
To start with, it needs to be clear to you exactly how a patent works as a “monopoly. “A patent permits the owner of the patent to avoid other people from producing the product or making use of the process included in the patent. Think of Thomas Edison and his awesome most well-known patented invention, the lighting bulb. With his patent for your light, Thomas Edison could prevent any other person or company from producing, using or selling light bulbs without his permission. Essentially, no one could contest with him inside the light business, and therefore he possessed a monopoly.
However, so that you can receive his monopoly, Thomas Edison had to give something in turn. He necessary to fully “disclose” his invention to the public.
To have a U . S . Patent, an inventor must fully disclose what the invention is, the way it operates, and the best way known from the inventor to really make it.It really is this disclosure for the public which entitles the inventor to your monopoly.The logic for accomplishing this is the fact by promising inventors a monopoly in return for disclosures to the public, inventors will continually make an effort to develop new technologies and disclose those to the general public. Providing them with the monopoly enables them to profit financially from your invention. Without this “tradeoff,” there will be few incentives to develop technologies, because without having a patent monopoly an inventor’s effort will bring him no financial reward.Fearing that their invention could be stolen once they make an effort to commercialize it, the inventor might never tell a soul about their invention, and also the public would not benefit.
The grant of rights within a patent will last for a restricted period.Utility patents expire two decades once they are filed.If this 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 your light bulb, we would probably need to pay about $300 to purchase a mild bulb today.Without competition, there would be little incentive for Edison to boost upon his light.Instead, when the Edison light bulb patent expired, everybody was able to manufacture lights, and several companies did.The vigorous competition to do that after expiration in the Edison patent ended in higher quality, lower costing lights.
Varieties of patents. There are essentially three types of patents which you should know of — utility patents, design patents, and provisional patent applications. A utility patent relates to inventions that have a “functional” aspect (quite simply, the invention accomplishes a utilitarian result — it actually “does” something).In other words, the one thing that is different or “special” about the invention has to be to get a functional purpose.To be eligible for utility patent protection, an invention must also fall within one or more of the following “statutory categories” as required under 35 USC 101. Keep in mind that almost any physical, functional invention will fall under one or more of those categories, so that you need not be concerned with which category best describes your invention.
A) Machine: think of a “machine” as something which accomplishes an activity due to the interaction of the physical parts, like a can opener, a vehicle engine, a fax machine, etc.It is the combination and interconnection of such physical parts with which our company is concerned and that are protected by the Inventhelp Store Products.
B) Article of manufacture: “articles of manufacture” needs to be looked at as items that accomplish a job like a machine, but with no interaction of various physical parts.While articles of manufacture and machines may seem to be similar in many instances, you are able to distinguish the two by considering articles of manufacture as more simplistic items that typically 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 just a “machine” since it is a simple device which fails to rely on the interaction of various parts.
C) Process: a means of doing something through one or more steps, each step interacting in some manner having a physical element, is actually a “process.” An activity could be a new approach to manufacturing a known product or can also be a brand new use for any known product. Board games are usually protected as a process.
D) Composition of matter: typically chemical compositions including pharmaceuticals, mixtures, or compounds like soap, concrete, paint, plastic, and so on can be patented as “compositions of matter.” Food items and recipes tend to be protected in this way.
A design patent protects the “ornamental appearance” of an object, instead of its “utility” or function, that is protected by way of a utility patent. Quite simply, if the invention is actually a useful object that includes a novel shape or overall appearance, a design patent might supply the appropriate protection. In order to avoid infringement, a copier will have to generate a version that fails to look “substantially like the ordinary observer.”They cannot copy the shape and overall look without infringing the design patent.
A provisional patent application is actually a step toward acquiring a utility patent, where invention may not yet be ready to obtain a utility patent. Quite simply, if this seems as if the invention cannot yet get a utility patent, the provisional application may be filed inside the Patent Office to establish the inventor’s priority towards the invention.Because the inventor consistently develop the invention and make further developments that allow a utility patent to be obtained, then the inventor can “convert” the provisional application to some full utility application. This later application is “given credit” for your date once the provisional application was first filed.
A provisional patent has several advantages:
A) Patent Pending Status: By far the most well-known benefit from a Provisional Patent Application is it allows the inventor to immediately begin marking the merchandise “patent pending.” It has an occasion-proven tremendous commercial value, just like the “as seen on TV” label which is put on many products. An item bearing both of these phrases clearly possesses a professional marketing advantage right from the start.
B) Ability to improve 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 should try to commercialize the merchandise and assess its potential. When the product appears commercially viable during that year, then this inventor is asked to convert the provisional application in to a utility application.However, unlike a normal utility application which cannot be changed by any means, a provisional application could have additional material put into it to enhance 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 in the product can be implemented and guarded during that time.
C) Establishment of any filing date: The provisional patent application also provides the inventor using a crucial “filing date.” In other words, the date the provisional is filed becomes the invention’s filing date, for the later filed/converted utility patent.
Requirements for getting a utility patent. Once you are certain that your invention is a potential candidate for any utility patent (since it fits within one of many 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 worried about whether your invention is 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 must initially determine whether your invention is “novel”. In other words, is your invention new?Are you the initial person to possess thought of it? For example, should you obtain a patent on the light, it seems like quite clear that you would not really entitled to a patent, because the light bulb will not be a new invention. The Patent Office, after receiving your application, would reject it based upon the reality that Edison invented the sunshine 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 of the invention or everything known to people multiple year before you decide to file a patent application for the invention).
For your invention to get novel with regards to other inventions in the world (prior art), it should just be different in some minimal way. Any trivial physical difference will suffice to render your invention novel spanning a similar invention.If you were to invent a square light, your invention would really be novel when compared to Edison light (since his was round/elliptical). In the event the patent office would cite the round Edison light 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 just like yours in each and every way your invention lacks novelty and it is not patentable.
Typically, the novelty requirement is very very easy to overcome, since any slight variation in good shape, size, blend of elements, etc. will satisfy it. However, however the invention is novel, it may fail one other requirement mentioned above: “non-obviousness.” So, if you find that your invention overcomes the novelty requirement, do not celebrate yet — it is harder to fulfill the non-obviousness requirement.
B) Non-obviousness: As stated before, the novelty requirement is definitely the easy obstacle to overcome within the search for a patent. Indeed, if novelty were the sole requirement to satisfy, then just about everything conceivable may be patented provided that it differed slightly from all of previously developed conceptions. Accordingly, a much more difficult, complex requirement has to be satisfied after the novelty question for you is met. This second requirement is known as “non-obviousness.”
The non-obviousness requirement states partly that although an invention as well as the related prior art may not be “identical” (which means the invention is novel with respect to the prior art), the invention may nevertheless be unpatentable when the differences between it as well as the related prior art could be considered “obvious” to a person having ordinary skill in the particular invention.
This really is in fact the Patent and Trademark Office’s way of subjectively judging the “quality” of the invention. Clearly the PTO has no latitude in judging whether your invention is novel or not — it really is typically quite evident whether any differences exist involving the invention as well as the prior art.About this point there is not any 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, will have different opinions regarding if the invention is truly obvious.
Some common examples of things which are certainly 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 items of the type commonly found together; substituting one popular 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 kinds of prior art which can be used to prevent you from getting a patent. In other words, it defines exactly those activities in which the PTO can cite against you so as to prove that your particular invention is not actually novel or show that your invention is obvious. These eight sections can be broken down into an arranged and understandable format consisting of 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 dates back before your “filing date” (thus showing that you might have waited too much time to submit for any patent).
A) Prior art which extends back before your date of invention: It could manage to make sense that if prior art exists which dates before your date of invention, you should not be entitled to acquire a patent on that invention as you would not truly be the first inventor. Section 102(a) of the patent law specifically describes the points which bring prior art should they occur before your date of invention:
1) Public knowledge in the usa: Any evidence that the invention was “known” by others, in america, just before your date of invention. Even if you have no patent or written documentation showing that the invention was known in america, the PTO can still reject your patent application under section 102(a) as lacking novelty when they can reveal that your invention was generally proven to people just before your date of invention.
2) Public use in the usa: Use by others from the invention you are trying to patent in public places in the United States, prior to your date of invention, can be held against your patent application by the PTO. This ought to 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 of this, and you do not need to get a patent for this.
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 likely be used against your patent application through the PTO. As an example, think that you invent a lobster de-shelling tool on June 1, 2007.The PTO may 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 or abroad: Any U . S . 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 getting a patent.Again, the reasoning here is that if your conception was described publicly in a printed publication, then you are certainly not the initial inventor (since somebody else thought of it prior to deciding to) and also you usually are not eligible to patent onto it.
B)Prior art which goes back before your filing date: As noted above, prior art was defined as everything known prior to your conception in the invention or everything recognized to the public multiple year before your filing of the patent application. What this means is that in lots of circumstances, even if you were the first one to have conceived/invented something, you will be unable to get a patent on it when it has entered the world of public knowledge and more than one year has passed between that point and your filing of a patent application. The goal of this rule is to persuade folks to try to get patents on their own inventions as quickly as possible or risk losing them forever. Section 102(b) of the patent law defines specifically those types of prior art which is often used against you as a “one-year bar” as follows:
1) Commercial activity in the usa: In the event the invention you want to patent was sold or offered available for sale in the United States multiple year prior to deciding to file a patent application, then you are “barred” from ever getting a patent on your invention.
EXAMPLE: you conceive of your invention on January 1, 2008, and provide it on the market on January 3, 2008, in an attempt to raise some funds to try to get a patent. You must file your patent application no later than January 3, 2009 (1 year 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 your application as being barred as it was offered available for sale multiple year just before your filing date.This too is the case if someone besides yourself begins selling your invention. Assume still which you conceived your invention on January 1, 2008, but did not sell or offer it available for sale publicly.You merely kept it to yourself.Also believe that on February 1, 2008, somebody else conceived of the invention and began selling it. This starts your 1 year clock running!Should you not file a patent on the invention by February 2, 2009, (1 year from the date another person began selling it) then you certainly also will likely be forever barred from getting a patent. Note that this provision from the law prevents you against obtaining a patent, although there is not any prior art dating back to to before your date of conception and also you are indeed the very first inventor (thus satisfying 102(a)), for the reason that the invention was offered to the public for over twelve months before your filing date because of the other person’s sale.Accordingly, “section 102(b) one-year bars” can ruin the chances of you obtaining a patent even when you are the first inventor and have satisfied section 102(a).
2) Public use in the United States: In the event the invention you wish to Invent Help Inventors was utilized in the United States on your part or any other multiple year before your filing of a patent application, then you definitely are “barred” from ever getting a patent on the invention. Typical samples of public use are when you or somebody else display and make use of the invention at a trade exhibition or public gathering, on television, or somewhere else where most people has potential access.The general public use will not need to be the one that specifically intends to make the public aware of the invention. Any use which is often potentially accessed from the public will suffice to begin the one year clock running (but a secret use will often not invoke the one-year rule).
3) Printed publication in the United States or abroad: Any newspaper article, magazine article, trade paper, academic thesis or other printed publication by you or by someone else, available to the public in the usa or abroad more than one year before your filing date, will stop you from getting a patent on your invention.Be aware that even a write-up authored by you, concerning your own invention, will begin usually the one-year clock running.So, as an example, if you detailed your invention in a natmlt release and mailed it out, this could start usually the one-year clock running.So too would the main 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: In case a U . S . or foreign patent covering your invention issued more than a year before your filing date, you will end up barred from obtaining a patent. Compare this using the previous section regarding United States and foreign patents which states that, under 102(a) in the patent law, you might 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 yourself a patent with an invention that was disclosed in another patent issued over a year ago, even if your date of invention was before the filing date of the patent.