What is a patent? A United States Patent is actually a “grant of rights” for a limited period. In layman’s terms, it is acontract in which the United States government expressly permits an individual or company to monopolize a certain concept for a very limited time. Typically, our government frowns upon any type of monopolization in commerce, as a result of belief that monopolization hinders free trade and competition, degrading our economy. An excellent 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), thought that Bell Telephone was an unfair monopoly and forced it to relinquish its monopoly powers over the telephone industry.
Why, then, would the us government permit a monopoly as a patent? The government makes an exception to encourage inventors ahead forward with their creations. By doing this, the government actually promotes advancements in technology and science.
To start with, it needs to be clear for you just the way a patent works as a “monopoly. “A patent permits the property owner of the How To Patent An Idea With Invent Help to prevent other people from producing the product or using the process protected by the patent. Think of Thomas Edison and his most well-known patented invention, the light bulb. With his patent for the 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 contest with him within the light bulb business, and hence he possessed a monopoly.
However, in order to get his monopoly, Thomas Edison needed to give something in return. He required to fully “disclose” his invention towards the public. To acquire a United States Patent, an inventor must fully disclose just what the invention is, the actual way it operates, and the best way known from the inventor to really make it.It is actually this disclosure to the public which entitles the inventor to some monopoly.The logic for carrying this out is that by promising inventors a monopoly in turn for their disclosures to the public, inventors will continually make an effort to develop new technologies and disclose them to people. Providing all of them with the monopoly allows them to profit financially from your invention. Without this “tradeoff,” there would be few incentives to develop technologies, because with no patent monopoly an inventor’s hard work will bring him no financial reward.Fearing that the invention would be stolen when they attempt to commercialize it, the inventor might never tell a soul regarding their invention, and the public would never benefit.
The grant of rights within patent will last for a restricted period.Utility patents expire two decades once they are filed.If this type of was not the case, and patent monopolies lasted indefinitely, there will be serious consequences. As an example, if Thomas Edison still held an in-force patent for your light bulb, we might probably have to pay about $300 to get a light bulb today.Without competition, there could be little incentive for Edison to enhance upon his light bulb.Instead, once the Edison light bulb patent expired, everyone was able to manufacture light bulbs, and lots of companies did.The vigorous competition to accomplish just that after expiration of the How To Get A Patent On An Idea led to better quality, lower costing light bulbs.
II. Varieties of patents
You will find essentially three kinds of patents which you should be aware of — utility patents, design patents, and provisional patent applications. A utility patent pertains to inventions which have a “functional” aspect (in other words, the invention accomplishes a utilitarian result — it genuinely “does” something).Put simply, one thing which is different or “special” concerning the invention must be for a functional purpose.To qualify for utility patent protection, an invention also must fall within at least one from the following “statutory categories” as required under 35 USC 101. Keep in mind that just about any physical, functional invention will fall into a minumum of one of those categories, so that you will not need to be worried about which category best describes your invention.
A) Machine: consider a “machine” as a thing that accomplishes an activity because of the interaction of the physical parts, for instance a can opener, a car engine, a fax machine, etc.It will be the combination and interconnection of these physical parts that we are concerned and which can be protected from the patent.
B) Article of manufacture: “articles of manufacture” ought to be regarded as things that accomplish a task just like a unit, but minus the interaction of various physical parts.While articles of manufacture and machines may seem to be similar in many cases, you can distinguish the two by thinking about articles of manufacture as more simplistic things that routinely have no moving parts. A paper clip, for instance is surely an article of manufacture.It accomplishes a job (holding papers together), but is clearly not a “machine” because it is an easy device which will not rely on the interaction of varied parts.
C) Process: a means of accomplishing something through a number of steps, each step interacting in some manner using a physical element, is actually a “process.” A procedure can be considered a new way of manufacturing a known product or can even be a new use for a known product. Board games are generally protected as a process.
D) Composition of matter: typically chemical compositions such as pharmaceuticals, mixtures, or compounds like soap, concrete, paint, plastic, as well as the like can be patented as “compositions of matter.” Food items and recipes tend to be protected in this manner.
A design patent protects the “ornamental appearance” of the object, as opposed to its “utility” or function, which is protected by way of a utility patent. Put simply, when the invention is actually a useful object which has a novel shape or overall look, a design patent might supply the appropriate protection. To avoid infringement, a copier would have to produce a version that fails to look “substantially like the ordinary observer.”They cannot copy the form and overall appearance without infringing the style patent.
A provisional patent application is actually a step toward acquiring a utility patent, where the invention might not anticipate to get yourself a utility patent. In other words, if this seems like the invention cannot yet get a utility patent, the provisional application may be filed within the Patent Office to establish the inventor’s priority to the invention.Since the inventor continues to develop the invention making further developments that allow a utility patent to get obtained, then this 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 filed.
A provisional patent has several advantages:
A) Patent Pending Status: Probably the most well-known benefit of a Provisional Patent Application is that 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 TV” label which can be placed on many products. A product bearing these two phrases clearly possesses an industrial marketing advantage right from the start.
B) Ability to increase 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 item and assess its potential. If the product appears commercially viable during that year, then the inventor is encouraged to convert the provisional application right into a utility application.However, unlike a typical utility application which can not be changed by any means, a provisional application may have additional material added to it to enhance it upon its conversion within twelve months.Accordingly, any helpful information or tips that had been obtained by the inventor or his marketing/advertising agents during commercialization in the product can be implemented and guarded at that time.
C) Establishment of a filing date: The provisional patent application offers the inventor using a crucial “filing date.” In other words, the date that the provisional is filed becomes the invention’s filing date, even for that later filed/converted utility patent.
III. Requirements for getting a utility patent. Once you are certain that your invention is actually a potential candidate to get a utility patent (because it fits within one of the statutory classes), you should then move ahead to assess whether your invention can satisfy two key requirements — “novelty” and “unobviousness.” These two requirements are essentially focused on whether your invention is completely new, and in case so, whether there is a substantial distinction between it and similar products within the related field.
A) Novelty: To obtain a utility patent, you must initially see whether your invention is “novel”. Put simply, is your invention new?Have you been the very first person to get looked at it? For example, if you decide to apply for a patent on the light bulb, it appears quite clear that you would not eligible to a patent, because the light bulb is not a brand new invention. The Patent Office, after receiving your application, would reject it based upon 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” before your conception of the invention or everything proven to the public more than one year before you file a patent application for your invention).
For the invention to become novel with regards to other inventions on the planet (prior art), it has to just be different in a few 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 light bulb (since his was round/elliptical). When the patent office would cite the round Edison light bulb against your square one as prior art to show that your invention had not been novel, they would be incorrect. However, if there exists an invention which can be identical to yours in every single way your invention lacks novelty and is not patentable.
Typically, the novelty requirement is very very easy to overcome, since any slight variation fit, size, mixture of elements, etc. will satisfy it. However, even although 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, do not celebrate yet — it is actually harder to satisfy the non-obviousness requirement.
B) Non-obviousness: As stated before, the novelty requirement is definitely the easy obstacle to overcome inside the search for Invention. Indeed, if novelty were the sole requirement to satisfy, then almost anything conceivable might be patented as long as it differed slightly coming from all previously developed conceptions. Accordingly, a far more difficult, complex requirement should be satisfied following the novelty real question is met. This second requirement is known as “non-obviousness.”
The non-obviousness requirement states partly that although an invention and the related prior art might not “identical” (which means the invention is novel with regards to the prior art), the invention may nevertheless be unpatentable if the differences between it and the related prior art will be considered “obvious” to a person having ordinary skill in the actual invention.
This is in fact the Patent and Trademark Office’s means 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 more often than not quite evident whether any differences exist involving the invention and 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, considering that the requirement is inherently subjective: each person, including different Examiners at the Patent Office, may have different opinions regarding whether the invention is definitely obvious.
Some common samples of things which are certainly not usually considered significant, and thus which can be usually considered “obvious” include: the mere substitution of materials to help make something lighter in weight; changing the size or color; combining items of the type commonly found together; substituting one well-known component for the next similar component, etc.
IV. What exactly is considered prior art from 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 keep you from getting 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 show that your particular invention is obvious. These eight sections can be broken down into a structured 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 initial inventor); and prior art which dates back just before 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 prior to your date of invention: It might manage to seem sensible that in case prior art exists which dates before your date of invention, you should not be entitled to have a patent on that invention as you would not truly become the first inventor. Section 102(a) of the patent law specifically describes the things which can be utilized for prior art if they occur before your date of invention:
1) Public knowledge in america: Any evidence that your particular invention was “known” by others, in the usa, before your date of invention. Even if there is no patent or written documentation showing that the invention was known in america, the PTO may still reject your patent application under section 102(a) as lacking novelty should they can show that the invention was generally known to the general public before your date of invention.
2) Public use in the United States: Use by others of the invention you are attempting to patent in public areas in the usa, prior to 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 utilizing the invention before you even conceived of it, you obviously cannot be the original and first inventor of this, and you do not deserve to obtain a patent because of it.
3) Patented in the usa or abroad: Any United States Of America or foreign patents which issued before your date of invention and which disclose your invention will be used against your patent application through the PTO. For 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 prior to your date of invention will stop you from getting a patent.Again, the reasoning here is that if your conception was described publicly in a printed publication, then you usually are not the first inventor (since another person looked at it before you) and you also usually are not entitled to patent into it.
B)Prior art which dates back before your filing date: As noted above, prior art was defined as everything known prior to your conception in the invention or everything proven to people several year before your filing of the patent application. This means that in numerous circumstances, even although you were the first one to have conceived/invented something, you will end up unable to get a patent on it when it has entered the arena of public knowledge and more than 1 year has passed between that point as well as your filing of the patent application. The purpose of this rule is to persuade folks to apply for patents on the inventions as soon as possible or risk losing them forever. Section 102(b) from the patent law defines specifically those varieties of prior art which can be applied against you as a “one-year bar” the following:
1) Commercial activity in the United States: If the invention you want to patent was sold or offered for sale in the usa more than one year before you file a patent application, then you definitely are “barred” from ever acquiring a patent on your own 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 get a patent. You need to file your patent application no later than January 3, 2009 (one year from your 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 to be barred as it was offered on the market several year prior to your filing date.This too would be the case if someone besides yourself begins selling your invention. Assume still that you conceived your invention on January 1, 2008, but did not sell or offer it on the market publicly.You just kept it to yourself.Also think that on February 1, 2008, someone 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 through the date one other person began selling it) then you also will likely be forever barred from acquiring a patent. Note this provision in the law prevents you from acquiring a patent, even though there is absolutely no prior art dating back to before your date of conception and you truly are the first inventor (thus satisfying 102(a)), simply because the invention was accessible to the general public for over one year before your filing date because of the other person’s sale.Accordingly, “section 102(b) one-year bars” can ruin your chances of getting a patent even though you are the first inventor and possess satisfied section 102(a).
2) Public use in the usa: When the invention you intend to patent was utilized in america by you or some other more than one year before your filing of a patent application, then you certainly are “barred” from ever obtaining a patent on the invention. Typical types of public use are when you or another person display and use the invention in a trade show or public gathering, on television, or somewhere else where general public has potential access.The general public use do not need to be one which specifically promises to create 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 usually not invoke usually the 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, accessible to the general public in america or abroad several year before your filing date, will keep you from getting a patent on your own invention.Note that even a post authored by you, regarding your own invention, will begin the one-year clock running.So, for instance, should you detailed your invention in a press ndefzr and mailed it all out, this might start the one-year clock running.So too would the main one-year clock start running for you when a complete stranger published a printed article about the subject of your invention.
4) Patented in the United States or abroad: In case a United States Of America or foreign patent covering your invention issued over a year before your filing date, you will end up barred from obtaining a patent. Compare this using the previous section regarding United States Of America and foreign patents which states that, under 102(a) from the patent law, you might be prohibited from obtaining a patent in the event the filing date of some other patent is earlier than your date of invention. Under 102(b) which we are discussing here, you cannot get yourself a patent upon an invention which had been disclosed in another patent issued over a year ago, even if your date of invention was before the filing date of this patent.