Patent Laws and Basic Patent Information
What is a Patent?A patent is essentially a bargain between the government and an inventor. In exchange for disclosing his or her invention in complete terms so that others can benefit from and improve on the technology, an inventor receives the right to exclude others from making, using, or selling his or her invention for a limited period of time. Note that the inventor does not actually receive the right to make, use, or sell the invention - only the right to exclude others from doing so. This can be an important distinction. Who may apply for a patent?The United States grants a patent only to the first and true inventor or inventors of the subject matter (an invention may be made jointly, provided that each prospective inventor contributed to its conception). The applicant(s) must be people, because corporations and other legal entities are not permitted to apply for patents in the U.S. However, if work that led to the invention is performed by an employee in the course of his or her normal duties, it is possible that he or she may be required to assign his or her rights in the patent to the employer (this is between the employer and employee and is not really a matter of patent law). There are also some extreme circumstances in which a corporation or other interested party may petition the U.S.P.T.O. to allow the patent application to proceed without the agreement of one or more of the inventors. However, this can happen only if the party demonstrates that they have a bona fide interest in the application and that they've tried in good faith to obtain the consent of the inventor(s) in question. What types of patents are there?There are three basic types of patents. A utility patent is the most common type, and is what most people think of when they use the word "patent." A utility patent protects an invention's structure and the way an invention works. A design patent protects the ornamental design or appearance of an invention (for example, automotive manufacturers often get design patents to protect how a car looks, and furniture manufacturers may get a design patent to protect how a particular sofa looks). A plant patent - the rarest of the three types of patents - protects particular varieties of asexually reproduced plants (for example, hybrid roses). The remainder of this information pertains to utility patents. If you are interested in other types of patents, additional information is available. How Long Does a Patent Last?A patent's term is currently 20 years from the earliest claimed filing date. Thus, the term of a patent may vary from case to case. In one common example, if a patent application is filed as a first application and it takes three years before the application becomes a patent, the term of the issued patent will be 17 years. (Laws and procedures are in place to increase the term length of the patent if the U.S. Patent and Trademark Office (U.S.P.T.O.) takes too long in examining it.) Maintenance fees must be paid 3.5 years, 7.5 years, and 11.5 years from the issue date to keep the patent in force. What are the Requirements for a Patent?There are several requirements for a patent. First and foremost, the inventor must file an application that describes the invention in such complete terms that one of "ordinary skill in the art" could make and use the invention from the description provided by the inventor. Second, the invention must be novel and nonobvious. "Novelty" means that the invention must not have been invented before. "Nonobviousness" means that the invention must not be obvious to "one of ordinary skill in the art" from the literature and patents that already exist. Obviousness can be difficult to evaluate, and is often a case-by-case judgment call, although the courts have provided some standardized guidance over the years. Another important requirement for obtaining a patent is that the inventor be completely candid and honest with the U.S.P.T.O. during the process of obtaining the patent. The inventor and others associated with the preparation of a patent application have a duty to disclose any prior art (literature, patents, etc.) that might have a bearing on whether or not a patent should be granted. What about international patent protection?The information above pertains to U.S. patents and patent applications. A U.S. patent protects an invention only within the U.S. and its territories. Each country has its own patent law, and inventors wishing to protect their inventions in other countries must apply for patents in those other countries. An inventor wishing to obtain a patent in another country must file a patent application in that country within one year of the date of filing in the U.S. Similarly, an inventor who has filed a patent application first in another country must file a corresponding U.S. application within one year of the date of filing in the foreign country. If an invention has been patented or described in a printed publication anywhere in the world, that patent or publication can bar an applicant from getting a U.S. patent. Procedures in foreign countries are often somewhat similar to those in the U.S., and most countries also insist on novelty and nonobviousness for any invention sought to be patented. There are some international treaties, such as the Patent Cooperation Treaty (PCT), that standardize some of the processing and make it easier for an applicant to obtain patent protection in multiple countries. The above is a brief summary of the portions of U.S. Patent Law that are relevant to most inventors and businesses. More information is available by following the links on the right or by contacting me. All contents copyright Andrew McAleavey. This website is for informational purposes only and should not be considered legal advice. Read the disclaimer. |