What is a patent? A U . S . Patent is essentially a “grant of rights” for a limited period. In layman’s terms, it is acontract where the United States government expressly permits an individual or company to monopolize a certain concept for a limited time. Typically, our government frowns upon any kind of monopolization in commerce, because of the belief that monopolization hinders free trade and competition, degrading our economy. A good example is the forced break-up of Bell Telephone some years ago into 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 over the telephone industry.
Why, then, would the federal government permit a monopoly in the form of a patent? The federal government makes an exception to encourage inventors in the future forward using their creations. By doing this, the federal government actually promotes advancements in science and technology.
First of all, it ought to be clear to you just how a patent acts as a “monopoly. “A patent permits the homeowner of the Inventhelp Store Products to stop someone else from producing the product or using the process included in the patent. Consider Thomas Edison and his most popular patented invention, the light bulb. Together with his patent for your light bulb, Thomas Edison could prevent every other person or company from producing, using or selling light bulbs without his permission. Essentially, no one could contend with him within the light bulb business, and hence he possessed a monopoly.
However, in order to get his monopoly, Thomas Edison had to give something in return. He needed to fully “disclose” his invention towards the public. To have a United States Of America Patent, an inventor must fully disclose just what the invention is, the actual way it operates, and the easiest way known from the inventor to make it.It is actually this disclosure towards the public which entitles the inventor to your monopoly.The logic for doing this is that by promising inventors a monopoly in exchange for their disclosures towards the public, inventors will continually make an effort to develop new technologies and disclose these to the general public. Providing these with the monopoly enables them to profit financially through the invention. Without it “tradeoff,” there will be few incentives to build up technologies, because with no patent monopoly an inventor’s hard work will bring him no financial reward.Fearing that their invention could be stolen whenever they attempt 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 a patent lasts for a limited period.Utility patents expire two decades when they are filed.If this type of 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 light bulb, we might probably must pay about $300 to get a light bulb today.Without competition, there would be little incentive for Edison to enhance upon his light bulb.Instead, when the Edison light bulb patent expired, everyone was free to manufacture light bulbs, and many companies did.The vigorous competition to accomplish just that after expiration in the Idea Inventhelp resulted in better quality, lower costing light bulbs.
II. Kinds of patents
You will find essentially three types of patents which you should know of — utility patents, design patents, and provisional patent applications. A utility patent pertains to inventions that have a “functional” aspect (in other words, the invention accomplishes a utilitarian result — it really “does” something).In other words, the thing which can be different or “special” concerning the invention must be to get a functional purpose.To be eligible for utility patent protection, an invention must also fall within at least one from the following “statutory categories” as required under 35 USC 101. Stay in mind that just about any physical, functional invention will fall into at least one of those categories, so that you do not need to be worried about which category best describes your invention.
A) Machine: consider a “machine” as a thing that accomplishes a job due to the interaction of the physical parts, for instance a can opener, a vehicle engine, a fax machine, etc.It is the combination and interconnection of these physical parts that we have been concerned and which can be protected by the patent.
B) Article of manufacture: “articles of manufacture” ought to be regarded as things which accomplish a job just like a machine, but minus the interaction of varied physical parts.While articles of manufacture and machines may seem to be similar in many cases, you can distinguish the two by thinking of articles of manufacture as more simplistic things that normally have no moving parts. A paper clip, as an example is an article of manufacture.It accomplishes a task (holding papers together), but is clearly not really a “machine” since it is a simple device which does not rely on the interaction of various parts.
C) Process: an easy method of doing something through a number of steps, each step interacting somehow having a physical element, is known as a “process.” A process can be a new method of manufacturing a known product or can even be considered a new use for any known product. Board games are typically protected as being a process.
D) Composition of matter: typically chemical compositions including pharmaceuticals, mixtures, or compounds such as soap, concrete, paint, plastic, and also the like can be patented as “compositions of matter.” Food items and recipes are frequently protected in this fashion.
A design patent protects the “ornamental appearance” of your object, rather than its “utility” or function, which is protected with a utility patent. Quite simply, in the event the invention is actually a useful object that includes a novel shape or overall appearance, a design patent might give you the appropriate protection. In order to avoid infringement, a copier would need to generate a version that will not look “substantially just like the ordinary observer.”They cannot copy the design and overall appearance without infringing the design patent.
A provisional patent application is really a step toward acquiring a utility patent, in which the invention might not even anticipate to get a utility patent. In other words, if it seems like the invention cannot yet obtain a utility patent, the provisional application may be filed in the Patent Office to determine the inventor’s priority for the invention.Since the inventor will continue to develop the invention and make further developments which allow 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 that date once the provisional application was initially filed.
A provisional patent has several positive aspects:
A) Patent Pending Status: The most well-known advantage of a Provisional Patent Application is that it allows the inventor to instantly begin marking the merchandise “patent pending.” It has a time-proven tremendous commercial value, like the “as seen on television” label that is applied to many products. A product bearing these two phrases clearly possesses a commercial marketing advantage right from the beginning.
B) Ability 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.During that year, the inventor should try 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 right into a utility application.However, unlike a normal utility application which can not be changed in any respect, a provisional application may have additional material added to it to boost it upon its conversion within 1 year.Accordingly, any helpful tips or tips that had been obtained from the inventor or his marketing/advertising agents during commercialization from the product can be implemented and protected during that time.
C) Establishment of any filing date: The provisional patent application offers the inventor with a crucial “filing date.” Put simply, the date that the provisional is filed becomes the invention’s filing date, even for your later filed/converted utility patent.
III. Requirements for obtaining a utility patent. When you are certain that your invention is really a potential candidate for a utility patent (as it fits within one of many statutory classes), you need to then move ahead to analyze whether your invention can satisfy two key requirements — “novelty” and “unobviousness.” Both of these requirements are essentially worried about whether your invention is totally new, and in case so, whether there is a substantial distinction between it and other products in the related field.
A) Novelty: To acquire a utility patent, you must initially decide if your invention is “novel”. Quite simply, is the invention new?Are you the very first person to get looked at it? For example, should you make application for a patent on the light bulb, it appears quite clear that you would not really eligible to a patent, considering that the light bulb will not be a new invention. The Patent Office, after receiving the application, would reject it based on the truth that Edison invented the light bulb a long time ago. In rejecting your patent application, the Patent Office would actually cite the Edison light bulb patent against you as relevant “prior art” (prior art is everything “known” just before your conception from the invention or everything recognized to the general public several year before you file a patent application for the invention).
For the invention to become novel with regards to other inventions on the planet (prior art), it must just 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 sometimes be novel compared to the Edison light 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 show that your particular invention was not novel, they might be incorrect. However, if there exists an invention which can be identical to yours in every way your invention lacks novelty and is also not patentable.
Typically, the novelty requirement is extremely easy to overcome, since any slight variation in good shape, size, blend of elements, etc. will satisfy it. However, even although the invention is novel, it might fail one other requirement mentioned above: “non-obviousness.” So, in the event that your invention overcomes the novelty requirement, usually do not celebrate yet — it is actually harder to fulfill the non-obviousness requirement.
B) Non-obviousness: As mentioned above, the novelty requirement is definitely the easy obstacle to beat within the quest for Inventhelp Office Locations. Indeed, if novelty were the only real requirement to fulfill, then just about everything conceivable could be patented as long since it differed slightly coming from all previously developed conceptions. Accordingly, a far more difficult, complex requirement should be satisfied following the novelty question for you is met. This second requirement is known as “non-obviousness.”
The non-obviousness requirement states to some extent that although an invention and the related prior art might not really “identical” (which means the invention is novel with regards to the prior art), the invention may nevertheless be unpatentable in the event the differences between it and also the related prior art would be considered “obvious” to someone having ordinary skill in the field of the particular invention.
This is in fact the Patent and Trademark Office’s means of subjectively judging the “quality” of your invention. Clearly the PTO has no latitude in judging whether your invention is novel or not — it really is almost always quite evident whether any differences exist in between your invention and also the prior art.With this point there is no room for subjective opinion. Regarding non-obviousness, however, there is a reasonably bit of room for various opinions, considering that the requirement is inherently subjective: each person, including different Examiners in the Patent Office, may have different opinions regarding whether or not the invention is really obvious.
Some common samples of things which are certainly not usually considered significant, and therefore which can be usually considered “obvious” include: the mere substitution of materials to create something lighter in weight; changing the size and style or color; combining pieces of what type commonly found together; substituting one well-known component for the next similar component, etc.
IV. What exactly 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 utilized to keep you from getting a patent. Put simply, it defines exactly those things which the PTO can cite against you so as to prove that your particular invention is not in fact novel or to show that your invention is obvious. These eight sections can be broken down into an organized and understandable format composed of two main categories: prior art that is dated before your date of “invention” (thus showing that you are currently not the first inventor); and prior art which dates back prior to your “filing date” (thus showing that you simply might have waited too long to file to get a patent).
A) Prior art which dates back just before your date of invention: It could appear to make sense that when 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 become the first inventor. Section 102(a) in the patent law specifically describes those things which can be used as prior art should they occur before your date of invention:
1) Public knowledge in america: 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 particular invention was known in america, the PTO may still reject your patent application under section 102(a) as lacking novelty if they can show that your particular invention was generally proven to the general public before your date of invention.
2) Public use in the United States: Use by others of the invention you are trying to patent in public places in the usa, just before your date of invention, can be held against your patent application from the PTO. This should make clear sense, since if a person else was publicly making use of the invention before you even conceived of it, you obviously should not be the first and first inventor from it, and you do not should get a patent for 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 is going to be used against your patent application from the PTO. As an example, assume 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, 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 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 acquiring a patent.Again, the reasoning here is when your conception was described publicly in a printed publication, then you certainly are certainly not the initial inventor (since someone else looked at it before you) and you also are certainly not eligible to patent into it.
B)Prior art which dates back just before your filing date: As noted above, prior art was considered everything known before your conception from the invention or everything proven to the general public several year before your filing of the patent application. Therefore that in numerous circumstances, even though you were the first one to have conceived/invented something, you may be unable to acquire a patent onto it when it has entered the world of public knowledge and over 1 year has gone by between that point as well as your filing of a patent application. The objective of this rule is to persuade folks to get patents on their inventions as quickly as possible or risk losing them forever. Section 102(b) in the patent law defines specifically those varieties of prior art which can be used against you as being a “one-year bar” as follows:
1) Commercial activity in the usa: If the invention you wish to patent was sold or offered available for sale in america multiple year before you file a patent application, then you are “barred” from ever getting a patent on the invention.
EXAMPLE: you conceive of your own invention on January 1, 2008, and offer it available for sale on January 3, 2008, in an attempt to raise some funds to get a patent. You must file your patent application no later than January 3, 2009 (1 year from your day you offered it for sale).If you file your patent application on January 4, 2009, for instance, the PTO will reject the application to be barred since it was offered available for sale several year before your filing date.This too will be the case if somebody other than yourself begins selling your invention. Assume still that you simply conceived your invention on January 1, 2008, but failed to sell or offer it available for sale publicly.You just kept it to yourself.Also think that on February 1, 2008, someone else conceived of your 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. Note this provision from the law prevents you from acquiring a patent, even though there is not any prior art dating back to before your date of conception and you also truly are the first inventor (thus satisfying 102(a)), for the reason that the invention was available to people for more than 1 year before your filing date as a result of the other person’s sale.Accordingly, “section 102(b) one-year bars” can ruin your odds of acquiring a patent even though you happen to be first inventor and also have satisfied section 102(a).
2) Public use in the usa: In the event the invention you intend to patent was utilized in the United States by you or another multiple year before your filing of a patent application, then you definitely are “barred” from ever acquiring a patent on your invention. Typical examples of public use are whenever you or someone else display and utilize the invention at a trade show or public gathering, on tv, or anywhere else in which the general public has potential access.The public use do not need to be one which specifically plans to make the public aware of the invention. Any use which can be potentially accessed through the public will suffice to begin with 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 by you or by someone else, offered to the general public in the usa or abroad multiple year before your filing date, will keep you from getting a patent on the invention.Note that even a write-up authored by you, regarding your own invention, begins the main one-year clock running.So, for example, in the event you detailed your invention in a press ndefzr and mailed it all out, this would start usually the one-year clock running.So too would 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 america or abroad: In case a United States or foreign patent covering your invention issued spanning a year prior to your filing date, you will end up barred from getting a patent. Compare this with the previous section regarding United States Of America and foreign patents which states that, under 102(a) of the patent law, you are prohibited from getting a patent if the filing date of another patent is sooner than your date of invention. Under 102(b) which our company is discussing here, you can not obtain a patent with an invention which was disclosed in another patent issued over last year, even if your date of invention was before the filing date of this patent.