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 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 us government, particularly the Justice Department (the governmental agency which prosecutes monopoly or “antitrust” violations), considered 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 as Inventhelp Wiki? The government makes an exception to encourage inventors in the future forward making use of their creations. By doing this, the federal government actually promotes advancements in science and technology.
To begin with, it needs to be clear for you just how a patent acts as a “monopoly. “A patent permits the homeowner from the patent to prevent someone else from producing the merchandise or utilizing the process protected by the patent. Consider Thomas Edison and his awesome most popular patented invention, the light bulb. With his patent for that bulb, Thomas Edison could prevent some other person or company from producing, using or selling bulbs without his permission. Essentially, nobody could contend with him in the light bulb business, so therefore he possessed a monopoly.
However, to be able to receive his monopoly, Thomas Edison had to give something in exchange. He necessary to fully “disclose” his invention towards the public.
To have a U . S . Patent, an inventor must fully disclose just what the invention is, how it operates, and the easiest way known from the inventor to really make it.It is actually this disclosure towards the public which entitles the inventor to some monopoly.The logic for accomplishing this is the fact by promising inventors a monopoly in return for disclosures towards the public, inventors will continually make an effort to develop new technologies and disclose these to people. Providing them with the monopoly allows them to profit financially from your invention. Without this “tradeoff,” there would be few incentives to produce new technologies, because with no patent monopoly an inventor’s hard work will bring him no financial reward.Fearing that the invention will be stolen whenever they try to commercialize it, the inventor might never tell a soul regarding their invention, and also the public would never benefit.
The grant of rights within patent will last for a limited period.Utility patents expire two decades when they are filed.If the 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 bulb, we might 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 bulb.Instead, when the Edison light patent expired, everyone was free to manufacture lights, and many companies did.The vigorous competition to perform exactly that after expiration in the Edison patent resulted in higher quality, lower costing bulbs.
Kinds of patents. You can find essentially three types of patents which you should know of — utility patents, design patents, and provisional patent applications. A utility patent applies to inventions which may have a “functional” aspect (in other words, the invention accomplishes a utilitarian result — it really “does” something).Put simply, the one thing which is different or “special” about the invention must be for a functional purpose.To qualify 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 just about any physical, functional invention will fall into at least one of these categories, which means you do not need to be concerned with which category best describes your invention.
A) Machine: imagine a “machine” as something which accomplishes an activity because of the interaction of the physical parts, for instance a can opener, an automobile engine, a fax machine, etc.It will be the combination and interconnection of those physical parts that our company is concerned and that are protected through the Invent Help Inventor.
B) Article of manufacture: “articles of manufacture” ought to be thought of as things which accomplish an activity just like a machine, but with no interaction of various physical parts.While articles of manufacture and machines may seem to be similar in many cases, you are able to distinguish the two by considering articles of manufacture as increasing numbers of simplistic things that typically have no moving parts. A paper clip, as an example is surely an article of manufacture.It accomplishes a task (holding papers together), but is clearly not a “machine” since it is a basic device which will not rely on the interaction of various parts.
C) Process: an easy method of performing something through one or more steps, each step interacting in some way having a physical element, is actually a “process.” An activity could be a new method of manufacturing a known product or can also be a brand new use to get a known product. Board games are typically protected as being a process.
D) Composition of matter: typically chemical compositions such as pharmaceuticals, mixtures, or compounds such as soap, concrete, paint, plastic, and so forth may 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 the object, as opposed to its “utility” or function, which can be protected by a utility patent. Put simply, in the event the invention is really a useful object that includes a novel shape or overall look, a design patent might provide the appropriate protection. To avoid infringement, a copier would need to generate a version that does not 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 obtaining a utility patent, where the invention might not yet be ready to obtain a utility patent. In other words, when it seems as if the invention cannot yet get a utility patent, the provisional application may be filed inside the Patent Office to determine the inventor’s priority towards the invention.Since the inventor continues to develop the invention to make further developments which permit a utility patent to be obtained, then your inventor can “convert” the provisional application to some full utility application. This later application is “given credit” for that date once the provisional application was initially filed.
A provisional patent has several benefits:
A) Patent Pending Status: The most popular benefit from a Provisional Patent Application is it allows the inventor to right away begin marking the product “patent pending.” This has an occasion-proven tremendous commercial value, similar to the “as seen on television” label which can be placed on many products. An item bearing these two phrases clearly possesses an industrial marketing advantage right from the start.
B) Capability to increase the invention: After filing the provisional application, the inventor has twelve months to “convert” the provisional into a “full blown” utility application.During that year, the inventor need to commercialize the product and assess its potential. In the event the product appears commercially viable in that year, then your inventor is encouraged to convert the provisional application in to a utility application.However, unlike a normal utility application which can not be changed in any respect, a provisional application may have additional material put into it to boost it upon its conversion within twelve months.Accordingly, any helpful tips or tips that had been obtained by the inventor or his marketing/advertising agents during commercialization from the product may be implemented and guarded during those times.
C) Establishment of a filing date: The provisional patent application also provides the inventor with a crucial “filing date.” In other words, the date that this provisional is filed becomes the invention’s filing date, even for the later filed/converted utility patent.
Requirements for acquiring a utility patent. When you are certain that your invention is really a potential candidate for any utility patent (as it fits within one of the statutory classes), you should then move ahead to analyze 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 when so, whether you will find a substantial distinction between it and other products within the related field.
A) Novelty: To acquire a utility patent, you need to initially decide if your invention is “novel”. Put simply, is your invention new?Are you currently the very first person to possess looked at it? For example, should you make application for a patent on the light, it appears quite clear that you simply would not entitled to a patent, since the light is not really a brand new invention. The Patent Office, after receiving your application, would reject it based upon the fact that Edison invented the light bulb many years ago. In rejecting your patent application, the Patent Office would actually cite the Edison bulb patent against you as relevant “prior art” (prior art is everything “known” prior to your conception of the invention or everything known to people several year prior to deciding to file a patent application for the invention).
For the invention to be novel with regards 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.If you were to invent a square light bulb, your invention would really be novel compared to the Edison bulb (since his was round/elliptical). When the patent office were to cite the round Edison light bulb against your square one as prior art to exhibit that your particular invention was not novel, they might be incorrect. However, if there exists an invention which is identical to yours in every single way your invention lacks novelty and it is not patentable.
Typically, the novelty requirement is incredibly simple to overcome, since any slight variation in shape, size, combination of elements, etc. will satisfy it. However, although the invention is novel, it could fail the other requirement mentioned above: “non-obviousness.” So, if you find that your invention overcomes the novelty requirement, tend not to celebrate yet — it is more difficult to meet the non-obviousness requirement.
B) Non-obviousness: As stated before, the novelty requirement is the easy obstacle to overcome within the search for a patent. Indeed, if novelty were the only 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 should be satisfied after 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 be “identical” (meaning that the invention is novel with respect to the prior art), the invention may nevertheless be unpatentable when the differences between it and also the related prior art would be considered “obvious” to someone having ordinary skill in the field of the specific invention.
This really is in actuality the Patent and Trademark Office’s method of subjectively judging the “quality” of the invention. Clearly the PTO has no latitude in judging whether your invention is novel or otherwise not — it is actually typically quite evident whether any differences exist between your invention as well as the prior art.With this point there is no room for subjective opinion. Regarding non-obviousness, however, there is a substantial amount of room for various opinions, considering that the requirement is inherently subjective: each person, including different Examiners in the Patent Office, will have different opinions regarding whether or not the invention is really obvious.
Some common types of items that usually are not usually considered significant, and so which can be usually considered “obvious” include: the mere substitution of materials to help make something much lighter; changing the size or color; combining pieces of what type commonly found together; substituting one popular component for another similar component, etc.
IV. What is considered prior art by 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 obtaining a patent. In other words, it defines exactly those activities which the PTO can cite against you in an effort to prove that your particular invention is not really actually novel or even to demonstrate that your invention is obvious. These eight sections can be split up 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 currently not the first inventor); and prior art which goes back just before your “filing date” (thus showing that you might have waited too much time to file to get a patent).
A) Prior art which dates back just before your date of invention: It might appear to sound right that if prior art exists which dates before your date of invention, you should not be entitled to have a patent on that invention because you would not truly become the first inventor. Section 102(a) from the patent law specifically describes the points which can be used as prior art if they occur before your date of invention:
1) Public knowledge in america: Any evidence that the invention was “known” by others, in america, prior to your date of invention. Even when there is no patent or written documentation showing that your invention was known in the United States, the PTO might still reject your patent application under section 102(a) as lacking novelty if they can show that your invention was generally recognized to people prior to your date of invention.
2) Public use in the usa: Use by others of the invention you are attempting to patent in public places in the United States, just before your date of invention, could be held against your patent application through the PTO. This will make clear sense, since if a person else was publicly using the invention even before you conceived of it, you obviously can not be the original and first inventor of this, and you may not deserve to receive a patent for this.
3) Patented in the usa or abroad: Any United States or foreign patents which issued prior to your date of invention and which disclose your invention will be used against your patent application from the PTO. For instance, assume 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, United States 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 Of America 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 getting a patent.Again, the reasoning here is when your conception was described publicly in a printed publication, then you certainly are not the initial inventor (since somebody else considered it before you decide to) and you also are not eligible for patent on it.
B)Prior art which extends back just before your filing date: As noted above, prior art was considered everything known prior to your conception in the invention or everything recognized to the general public multiple year before your filing of any patent application. What this means is that in many circumstances, even when you were the first to have conceived/invented something, you will be unable to get a patent on it if it has entered the realm of public knowledge and over twelve months has gone by between that time and your filing of any patent application. The purpose of this rule would be to encourage people 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 kinds of prior art which can be used against you being a “one-year bar” the following:
1) Commercial activity in the usa: In the event the invention you wish to patent was sold or offered on the market in the usa more than one year prior to deciding to file a patent application, then you are “barred” from ever getting a patent on the invention.
EXAMPLE: you conceive of your invention on January 1, 2008, and present it for sale 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 (one year from your day you offered it for sale).Should you file your patent application on January 4, 2009, for instance, the PTO will reject your application for being barred because it was offered on the market more than one year before your filing date.This too will be the case if somebody other than 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 believe 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, (twelve months through the date the other person began selling it) then you certainly also is going to be forever barred from obtaining a patent. Be aware that this provision in the law prevents you from acquiring a patent, despite the fact that there is not any prior art going back to before your date of conception and also you really are the initial inventor (thus satisfying 102(a)), mainly because the invention was available to the public for more than one year before your filing date because of another person’s sale.Accordingly, “section 102(b) one-year bars” can ruin the chances of you acquiring a patent even though you are the first inventor and have satisfied section 102(a).
2) Public use in the usa: If the invention you wish to New Inventions was utilized in the United States by you or any other several 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 somebody else display and make use of the invention with a trade event or public gathering, on television, or elsewhere where the public has potential access.The public use need not be one that specifically intends to create 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 usually 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, offered to people in the usa or abroad more than one year before your filing date, will stop you from getting a patent on your invention.Remember that even an article authored by you, regarding 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 might start usually the one-year clock running.So too would the one-year clock start running for you personally if a complete stranger published a printed article about the subject of your invention.
4) Patented in the usa or abroad: If a United States or foreign patent covering your invention issued over a year just 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) in the patent law, you happen to be prohibited from getting a patent if the filing date of another patent is sooner 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 last year, even when your date of invention was ahead of the filing date of the patent.