A Guide to Understanding Patents

A patent is an intellectual property right that the United States government grants to an inventor. Its purpose is to promote innovation, and it does this by ensuring that the inventor publicly discloses the invention once he is given a patent “to exclude others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States.”

This means that for the first few years of the invention's life only the inventor can profit from the invention, but the public can benefit from it. Others can in fact make, sell or just use the invention, but they have to get and pay for the inventor's permission first. Only the actual inventor can apply for and receive the patent.

Types of Patents

There are four types of patents: utility patents, design patent, plant patents, and software patents

Most patents are utility patents, which protect “new, nonobvious and useful” articles of manufacture (or manufactures), compositions of matter, processes, machines, and improvements on any of those things.

Articles of manufacture are just man or machine-made things with few moving parts; things that are made, but not complicated enough to be called machines.

An example is a new kind of window or eyeglass lens.

Compositions of matter are just mixtures, chemical compositions, or compounds.

An example might be a new kind of plastic.

An example of a process might be the way to use chemicals and fabric to create a new heat-resistant, fireproof variety of canvas.

An example of a machine might be a new machine that measures fabric for cutting patterns in a factory.

The other kinds of patents which are less common are:

Design patents: which protect decorative design of an article of manufacture. An example of a design patent might be for the body of the latest model of a car.

Plant patents: which protect asexually-reproduced plants that are created by people.  An example of a plant patent might be for a new variety of orchid that was produced by crossing two other varieties.

Software patents: which is becoming the method of choice for effective protection of original computer software. Increasingly a software patent is being described as a collection of processes or as a machine, which is why it commonly will fall under a utility or design patent.

Things that cannot be patented?

Things that cannot be patented include things like: artistic, dramatic, literary and musical works; these receive copyright protection. Abstract ideas cannot be patented, nor can laws of nature or physical phenomena.

Furthermore, as suggested by the definitions of patents, inventions which are not useful may not be patented. An example of an invention which is not useful according to the United States Patent and Trademark Office (USPTO) is a perpetual motion machine. They do not provide a list of examples here, probably because it is very unusual for a patent application to be challenged on this point.

Inventions which are obvious may not be patented. To determine whether an invention is obvious or not, courts use the following standards.

First, where is the starting point based on the scope and content of prior work in the area?

Next, what is the level of skill of an ordinary person in this area; how much would they understand?

Finally, what is the difference between the prior starting point and this invention?

Was it enough of a leap by the inventor that the ordinary man's skill couldn't have made it?

An invention must be novel to receive a patent. “Novelty” is strictly defined by the law. If the invention was known or used in the U.S. before this particular applicant invented it, patented or described in any printed publication before the invention, or in use or for sale in the U.S. for more than one year before the patent application, the invention will not be considered to be novel.

Inventions which are intended solely for an illegal purposes will be considered offensive to public morality. These kinds of inventions cannot be patented.

In order to receive a patent, an inventor must ensure that his or her invention is adequately described and enabled. This means that the description would allow someone of ordinary skill in the art or same field to make and use the invention. The invention must also be claimed by the inventor in clear and definite terms. This means that an inventor cannot get a patent without being able to clearly and fully describe all aspects of his invention.

Assuming your invention passes all of these tests, your next step should be to search all previous public disclosures in the field (or the “prior art”) including previously patented inventions in the U.S. and in foreign countries to determine if your invention has previously been publicly disclosed. If it has it would not be patentable.

How long does a patent last for?

Utility patents last 20 years from the date you first applied for the patent as long as you keep up on your maintenance fees. Design and plant patents last 14 years from the date you are granted the patent. Design and plant patents do not require maintenance fees.

Fees for patents vary based on the kind of application needed and the way you “claim” your invention.

There are three basic fees for utility patents.

The filing fee is what you pay to the USPTO to start your application. It is nonrefundable and does not guarantee that you will get a patent; it merely begins the process of examination of your claim. The issue fee comes next and you pay this only if your patent is granted.

Next, in the case of utility patents maintenance fees maintain your patent protection. You need to pay them 3 1/2, 7 1/2, and 11 1/2 years after your patent is granted. At times there may be other fees you must pay.

Patents filed with the USPTO only have effect in the United States. Inventors must apply for patent protection in each country where they need patent protection. Most countries require payment of fees and that the patented invention be put to commercial use within a certain period of time.

The Patent Cooperation Treaty (PCT) is an international agreement. The PCT allows inventors to file single patent applications in one language with one office that have effect in the multiple PCT member countries. There is no such thing as “an international patent” even with the PCT, but the structure put in place by the PCT makes the international patent process easier, less expensive, and gives inventors more time to investigate the commercial viability of his invention. The PCT has 146 member states around the world, so filing with the PCT office is very effective overall.

An inventor gives permission for others to use his patented invention by “licensing” it to a person or company. Usually, that license will be expensive, but there are times when licensing is inexpensive for some specific reason.

For example, there are times when the U.S. government will license something it holds a patent on for a nominal fee. When it does this its goal is not to earn revenue from the fee, but to regulate who can make, use or sell the invention or to keep others from profiting too much and overcharging others for the license from some product that there is an extreme need for.

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