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 in which the U . S . government expressly permits an individual or company to monopolize a particular concept for a very limited time.
Typically, our government frowns upon any kind of monopolization in commerce, due to the 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 to the many regional phone companies. The federal 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 within the telephone industry.
Why, then, would the government permit a monopoly in the form of Inventhelp Caveman Commercial? The government makes an exception to encourage inventors to come forward with their creations. By doing this, the federal government actually promotes advancements in technology and science.
To start with, it needs to be clear to you personally exactly how a patent acts as a “monopoly. “A patent permits the property owner from the patent to avoid anyone else from producing the merchandise or using the process protected by the patent. Consider Thomas Edison and his awesome most popular patented invention, the light bulb. 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 contest with him in the bulb business, so therefore he possessed a monopoly.
However, to be able to receive his monopoly, Thomas Edison needed to give something in exchange. He necessary to fully “disclose” his invention to the public.
To acquire a U . S . Patent, an inventor must fully disclose just what the invention is, the actual way it operates, and the easiest way known through the inventor to really make it.It is this disclosure to the public which entitles the inventor to some monopoly.The logic for doing this is the fact by promising inventors a monopoly in return for disclosures towards the public, inventors will continually strive to develop new technologies and disclose these to the public. Providing them with the monopoly enables them to profit financially from your invention. Without it “tradeoff,” there could be few incentives to produce technologies, because without a patent monopoly an inventor’s hard work would bring him no financial reward.Fearing that the invention will be stolen once they try to commercialize it, the inventor might never tell a soul regarding their invention, as well as the public would never benefit.
The grant of rights within a patent can last for a restricted period.Utility patents expire two decades after they are filed.If this type of was untrue, and patent monopolies lasted indefinitely, there will be serious consequences. As an example, if Thomas Edison still held an in-force patent for the light, we would probably have to pay about $300 to get a light bulb today.Without competition, there would be little incentive for Edison to enhance upon his light.Instead, once the Edison light bulb patent expired, everybody was free to manufacture bulbs, and lots of companies did.The vigorous competition to do just that after expiration of the Edison patent ended in higher quality, lower costing bulbs.
Types of patents. You can find essentially three kinds of patents which you ought to know of — utility patents, design patents, and provisional patent applications. A utility patent pertains to inventions that have a “functional” aspect (quite simply, the invention accomplishes a utilitarian result — it genuinely “does” something).Put simply, the one thing which can be different or “special” regarding the invention should be for any functional purpose.To qualify for utility patent protection, an invention also must fall within one or more of the following “statutory categories” as required under 35 USC 101. Take into account that virtually any physical, functional invention will fall under at least one of these categories, which means you will not need to 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 the physical parts, such as a can opener, an automobile engine, a fax machine, etc.It is the combination and interconnection of such physical parts in which we have been concerned and that are protected from the Inventhelp Caveman.
B) Article of manufacture: “articles of manufacture” ought to be thought of as things that accomplish a task similar to a machine, but without the interaction of varied physical parts.While articles of manufacture and machines may appear to be similar in many instances, you can distinguish the two by considering articles of manufacture as more simplistic things which typically have no moving parts. A paper clip, for example is an article of manufacture.It accomplishes an activity (holding papers together), but is clearly not a “machine” because it is an easy device which fails to rely on the interaction of various parts.
C) Process: an easy method of doing something through one or more steps, each step interacting in some manner using a physical element, is actually a “process.” A process could be a new way of manufacturing a known product or can even be 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 such as soap, concrete, paint, plastic, and the like may be patented as “compositions of matter.” Food items and recipes are often protected in this manner.
A design patent protects the “ornamental appearance” of an object, instead of its “utility” or function, which is protected with a utility patent. Put simply, when the invention is actually a useful object that has a novel shape or overall appearance, a design patent might supply the appropriate protection. To prevent infringement, a copier will have to create a version that will not look “substantially like the ordinary observer.”They cannot copy the shape and overall appearance without infringing the style patent.
A provisional patent application is actually a step toward acquiring a utility patent, where invention might not exactly yet anticipate to get a utility patent. In other words, if it seems like the invention cannot yet obtain a utility patent, the provisional application could be filed in the Patent Office to determine the inventor’s priority to the invention.Since the inventor will continue to develop the invention making further developments which permit a utility patent to be obtained, then the inventor can “convert” the provisional application to your full utility application. This later application is “given credit” for the date if the provisional application was first filed.
A provisional patent has several benefits:
A) Patent Pending Status: The most well known advantage of a Provisional Patent Application is that it allows the inventor to immediately begin marking the product “patent pending.” This has an occasion-proven tremendous commercial value, similar to the “as seen in the media” label that is put on many products. A product or service bearing both these phrases clearly possesses an industrial marketing advantage right from the start.
B) Capacity to improve the invention: After filing the provisional application, the inventor has 1 year to “convert” the provisional in to a “full blown” utility application.In that year, the inventor should try to commercialize the item and assess its potential. When the product appears commercially viable during that year, then this inventor is motivated to convert the provisional application right into a utility application.However, unlike an ordinary utility application which can not be changed by any means, a provisional application might have additional material put into it to improve it upon its conversion within twelve months.Accordingly, any helpful tips or tips that were obtained by the inventor or his marketing/advertising agents during commercialization from the product could be implemented and guarded during that time.
C) Establishment of a filing date: The provisional patent application offers the inventor having 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 obtaining a utility patent. When you are sure that your invention is a potential candidate to get a utility patent (because it fits within one of many statutory classes), you should then move ahead to analyze whether your invention can satisfy two key requirements — “novelty” and “unobviousness.” These two requirements are essentially worried about whether your invention is completely new, and in case so, whether there is a substantial difference between it and similar products within the related field.
A) Novelty: To obtain a utility patent, you have to initially see whether your invention is “novel”. Quite simply, is your invention new?Are you the first person to have considered it? For example, should you make application for a patent on the light, it seems like quite clear that you simply would not entitled to a patent, since the light bulb will not be a whole new invention. The Patent Office, after receiving your application, would reject it dependant on 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 from the invention or everything known to people multiple year prior to deciding to file a patent application for your invention).
For your invention to be novel regarding other inventions on the planet (prior art), it has to just be different in certain minimal way. Any trivial physical difference will suffice to render your invention novel over a similar invention.If you decide to invent a square bulb, your invention would actually be novel compared to the Edison light (since his was round/elliptical). If the patent office were to cite the round Edison light bulb against your square one as prior art to exhibit that your invention was not novel, they would be incorrect. However, if there exists an invention which is identical to yours in every single way your invention lacks novelty and is not patentable.
Typically, the novelty requirement is incredibly easy to overcome, since any slight variation in shape, size, combination of elements, etc. will satisfy it. However, even though the invention is novel, it might fail one other requirement mentioned previously: “non-obviousness.” So, if you find that your invention overcomes the novelty requirement, tend not to celebrate yet — it is harder to satisfy the non-obviousness requirement.
B) Non-obviousness: As stated before, the novelty requirement will be the easy obstacle to get over inside the pursuit of a patent. Indeed, if novelty were the only requirement in order to satisfy, then almost anything conceivable might be patented as long as it differed slightly from all of previously developed conceptions. Accordingly, a much more difficult, complex requirement should be satisfied after the novelty question is met. This second requirement is referred to as “non-obviousness.”
The non-obviousness requirement states partly 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 as well as the related prior art will be considered “obvious” to someone having ordinary skill in the actual invention.
This really is in fact the Patent and Trademark Office’s means 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 typically quite evident whether any differences exist in between your invention and also the prior art.On this point there is absolutely no room for subjective opinion. Regarding non-obviousness, however, there is certainly a substantial amount of room for many different opinions, because the requirement is inherently subjective: differing people, including different Examiners on the Patent Office, may have different opinions regarding whether or not the invention is really obvious.
Some common examples of things that are certainly not usually considered significant, and thus which can be usually considered “obvious” include: the mere substitution of materials to make something much lighter; changing the dimensions or color; combining pieces of what type commonly found together; substituting one well-known component for another 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 types of prior art which could be used to keep you from obtaining a patent. Quite simply, it defines exactly those activities which the PTO can cite against you so as to prove that the invention is not really in fact novel or show that your invention is obvious. These eight sections may be split up into an arranged and understandable format consisting of two main categories: prior art which can be dated before your date of “invention” (thus showing that you are not the initial inventor); and prior art which dates back prior to your “filing date” (thus showing that you might have waited very long to submit for a patent).
A) Prior art which dates back just before your date of invention: It could manage to sound right that in case prior art exists which dates before your date of invention, you must not be entitled to have a patent on that invention as you would not truly be the first inventor. Section 102(a) of the patent law specifically describes the things which bring prior art when they occur before your date of invention:
1) Public knowledge in the United States: Any evidence that your particular invention was “known” by others, in america, before your date of invention. Even if you have no patent or written documentation showing that your invention was known in the United States, the PTO can still reject your patent application under section 102(a) as lacking novelty when they can reveal that your invention was generally recognized to people before your date of invention.
2) Public use in the usa: Use by others from the invention you are attempting to patent in public areas in the usa, just before your date of invention, can be held against your patent application through the PTO. This will make clear sense, since if somebody else was publicly utilizing the invention even before you conceived of this, you obviously should not be the first and first inventor of it, and you do not should receive a patent because of it.
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 from the PTO. As an example, think 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, 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 just 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 definitely are certainly not the very first inventor (since someone else thought of it before you) and you are certainly not eligible to patent on it.
B)Prior art which extends back prior to your filing date: As noted above, prior art was defined as everything known before your conception of the invention or everything recognized to people more than one year before your filing of a patent application. Therefore that in numerous circumstances, even when you were the first to have conceived/invented something, you will be unable to get a patent onto it when it has entered the world of public knowledge and over twelve months has gone by between that point as well as your filing of the patent application. The objective of this rule is always to persuade folks to try 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 kinds of prior art which may be used against you as being a “one-year bar” as follows:
1) Commercial activity in the usa: When the invention you intend to patent was sold or offered on the market in the usa multiple year before you decide to file a patent application, then you are “barred” from ever obtaining a patent on the invention.
EXAMPLE: you conceive of the invention on January 1, 2008, and present it for sale on January 3, 2008, in an effort to raise some funds to try to get a patent. You must file your patent application no later than January 3, 2009 (one year through the day you offered it available for sale).In the event you file your patent application on January 4, 2009, for example, the PTO will reject the application as being barred as it was offered for sale several year before your filing date.This would be the case if someone besides yourself begins selling your invention. Assume still that you simply conceived your invention on January 1, 2008, but failed to sell or offer it on the market publicly.You simply kept it to yourself.Also believe that on February 1, 2008, somebody else conceived of your own invention and began selling it. This starts your twelve months clock running!Should you not file a patent on your own invention by February 2, 2009, (one year from your date one other person began selling it) then you definitely also will be forever barred from acquiring a patent. Be aware that this provision in the law prevents you against getting a patent, even though there is no prior art going back to before your date of conception and also you truly are the initial inventor (thus satisfying 102(a)), simply because the invention was available to people for more than twelve months before your filing date due to the other person’s sale.Accordingly, “section 102(b) one-year bars” can ruin your odds of acquiring a patent even if you are the first inventor and also have satisfied section 102(a).
2) Public use in the usa: If the invention you wish to How Do I Patent A Product was used in the usa 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 samples of public use are once you or somebody else display and use the invention in a trade exhibition or public gathering, on tv, or somewhere else where most people has potential access.People use need not be one that specifically intends to create the public mindful of the invention. Any use which can 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 usa or abroad: Any newspaper article, magazine article, trade paper, academic thesis or any other printed publication by you or by another individual, available to people in the usa or abroad multiple year before your filing date, will keep you from obtaining a patent on the invention.Remember that even a post authored by you, concerning your own invention, will begin usually the one-year clock running.So, as an example, in the event you detailed your invention in a natmlt release and mailed it all out, this would start the one-year clock running.So too would usually the one-year clock start running to suit your needs if a complete stranger published a printed article about the subject of your invention.
4) Patented in the United States or abroad: If a United States Of America or foreign patent covering your invention issued more than a year before your filing date, you may be barred from getting a patent. Compare this with all the previous section regarding United States Of America and foreign patents which states that, under 102(a) in the patent law, you happen to be prohibited from obtaining a patent in the event the filing date of another patent is sooner than your date of invention. Under 102(b) which we have been discussing here, you can not get a patent with an invention which had been disclosed in another patent issued over last year, even if your date of invention was prior to the filing date of this patent.