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 where the United States government expressly permits an individual or company to monopolize a specific concept for a very limited time.
Typically, our government frowns upon any type of monopolization in commerce, due to the belief that monopolization hinders free trade and competition, degrading our economy. An excellent example will be the forced break-up of Bell Telephone some in the past to the many regional phone companies. The federal government, particularly 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 by means of How To Patent A Product? The federal government makes an exception to encourage inventors to come forward making use of their creations. By doing this, the federal government actually promotes advancements in science and technology.
To start with, it ought to be clear to you precisely how a patent works as a “monopoly. “A patent permits the homeowner from the patent to stop other people from producing the item or using the process included in the patent. Think about Thomas Edison and his most famous patented invention, the light bulb. With his patent for the light, Thomas Edison could prevent every other person or company from producing, using or selling bulbs without his permission. Essentially, no one could contest with him in the light business, and therefore he possessed a monopoly.
However, in order to receive his monopoly, Thomas Edison needed to give something in return. He necessary to fully “disclose” his invention towards the public.
To have a United States Patent, an inventor must fully disclose just what the invention is, the actual way it operates, and the easiest way known by the inventor to make it.It really is this disclosure towards the public which entitles the inventor to your monopoly.The logic for accomplishing this is the fact that by promising inventors a monopoly in return for disclosures for the public, inventors will continually strive to develop new technologies and disclose them to the public. Providing these with the monopoly enables them to profit financially from the invention. Without this “tradeoff,” there will be few incentives to develop technologies, because with no patent monopoly an inventor’s effort will bring him no financial reward.Fearing that the invention would be stolen whenever they make an effort to commercialize it, the inventor might never tell a soul with regards to their invention, as well as the public would not benefit.
The grant of rights under a patent can last for a limited period.Utility patents expire twenty years once they are filed.If this type of was untrue, and patent monopolies lasted indefinitely, there will be serious consequences. For instance, if Thomas Edison still held an in-force patent for the light, we might probably have to pay about $300 to get a light bulb today.Without competition, there could be little incentive for Edison to improve upon his light.Instead, when the Edison light bulb patent expired, everybody was liberated to manufacture bulbs, and several companies did.The vigorous competition to do that after expiration of the Edison patent resulted in higher quality, lower costing lights.
Kinds 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 which have a “functional” aspect (quite simply, the invention accomplishes a utilitarian result — it genuinely “does” something).Quite simply, the thing which is different or “special” concerning the invention has to be for any functional purpose.To be eligible for utility patent protection, an invention must also fall within at least one of the following “statutory categories” as required under 35 USC 101. Take into account that virtually any physical, functional invention will fall under a minumum of one of these categories, so you will not need to be concerned with which category best describes your invention.
A) Machine: consider a “machine” as something which accomplishes an activity 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 that we have been concerned and that are protected by the Inventhelp Caveman Commercial.
B) Article of manufacture: “articles of manufacture” should be regarded as things that accomplish an activity similar to a machine, but minus the interaction of numerous physical parts.While articles of manufacture and machines may appear to be similar in many instances, it is possible to distinguish the 2 by thinking of articles of manufacture as more simplistic items that normally have no moving parts. A paper clip, for example is definitely an article of manufacture.It accomplishes a job (holding papers together), but is clearly not a “machine” because it is a simple device which will not rely on the interaction of various parts.
C) Process: a way of accomplishing something through a number of steps, each step interacting in some way with a physical element, is actually a “process.” A procedure could be a new approach to manufacturing a known product or can even be a whole new use for any known product. Board games are generally protected as being a process.
D) Composition of matter: typically chemical compositions including pharmaceuticals, mixtures, or compounds such as soap, concrete, paint, plastic, and so forth may 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 an object, rather than its “utility” or function, that is protected by a utility patent. Put simply, if the invention is really a useful object that has a novel shape or overall appearance, a design patent might give you the appropriate protection. To prevent infringement, a copier would need to create a version that fails to look “substantially just like the ordinary observer.”They cannot copy the design and overall look without infringing the style patent.
A provisional patent application is actually a step toward acquiring a utility patent, where invention may not yet be ready to get yourself a utility patent. In other words, if it seems as if the invention cannot yet obtain a utility patent, the provisional application may be filed in the Patent Office to establish the inventor’s priority to the invention.Because the inventor will continue to develop the invention making further developments which allow a utility patent to get obtained, then this inventor can “convert” the provisional application to a full utility application. This later application is “given credit” for the date once the provisional application was initially filed.
A provisional patent has several positive aspects:
A) Patent Pending Status: Probably the most popular advantage of a Provisional Patent Application is that it allows the inventor to right away begin marking the merchandise “patent pending.” This has a period-proven tremendous commercial value, like the “as seen in the media” label which can be put on many products. A product bearing both of these phrases clearly possesses a professional marketing advantage right from the start.
B) Ability to enhance the invention: After filing the provisional application, the inventor has 1 year to “convert” the provisional 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 in that year, then your inventor is encouraged to convert the provisional application into a utility application.However, unlike a typical utility application which can not be changed in any respect, a provisional application could have additional material put into it to improve it upon its conversion within 1 year.Accordingly, any helpful information or tips which were obtained from the inventor or his marketing/advertising agents during commercialization in the product could be implemented and protected during those times.
C) Establishment of the filing date: The provisional patent application also provides the inventor having a crucial “filing date.” In other words, the date the provisional is filed becomes the invention’s filing date, for the later filed/converted utility patent.
Requirements for getting a utility patent. Once you are sure that your invention is really a potential candidate for a utility patent (because it fits within among the statutory classes), you should then move ahead to assess whether your invention can satisfy two key requirements — “novelty” and “unobviousness.” Those 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 need to initially decide if your invention is “novel”. Put simply, is your invention new?Are you the first person to possess looked at it? For instance, if you decide to make application for a patent on the light bulb, it seems quite clear which you would not entitled to a patent, since the light is not really a whole new invention. The Patent Office, after receiving your application, would reject it dependant on the reality that Edison invented the lighting bulb a long time ago. In rejecting your patent application, the Patent Office would actually cite the Edison bulb patent against you as relevant “prior art” (prior art is everything “known” before your conception in the invention or everything proven to the public more than one year before you decide to file a patent application for that invention).
For your invention to get novel with respect to other inventions in the world (prior art), it should just be different in a few minimal way. Any trivial physical difference will suffice to render your invention novel over a similar invention.Should you invent a square light bulb, your invention would really be novel when compared to Edison light (since his was round/elliptical). In the event the patent office would cite the round Edison bulb against your square one as prior art to demonstrate that the invention was not novel, they might be incorrect. However, if there exists an invention which is just like yours in each and every way your invention lacks novelty and is also not patentable.
Typically, the novelty requirement is incredibly simple to overcome, since any slight variation fit, size, mixture of elements, etc. will satisfy it. However, even though the invention is novel, it might fail the other requirement mentioned previously: “non-obviousness.” So, in the event that your invention overcomes the novelty requirement, usually do not celebrate yet — it really is more challenging to meet the non-obviousness requirement.
B) Non-obviousness: As stated before, the novelty requirement will be the easy obstacle to overcome inside the quest for a patent. Indeed, if novelty were the only real requirement to fulfill, then almost anything conceivable could be patented provided that it differed slightly from all of previously developed conceptions. Accordingly, a far more difficult, complex requirement should be satisfied following the novelty real question is met. This second requirement is called “non-obviousness.”
The non-obviousness requirement states partly that although an invention and the related prior art may not be “identical” (meaning that the invention is novel with regards to the prior art), the invention may nevertheless be unpatentable if the differences between it as well as the related prior art could be considered “obvious” to a person having ordinary skill in the specific invention.
This can be in fact the Patent and Trademark Office’s way of subjectively judging the “quality” of an invention. Clearly the PTO has no latitude in judging whether your invention is novel or not — it is almost always quite evident whether any differences exist involving the invention as well as the prior art.With this point there is absolutely no room for subjective opinion. Regarding non-obviousness, however, there is certainly a large amount of room for many different opinions, considering that the requirement is inherently subjective: differing people, including different Examiners on the Patent Office, will have different opinions regarding if the invention is definitely obvious.
Some common examples of things which usually are 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 dimensions or color; combining items of what type commonly found together; substituting one well-known component for the next 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 varieties of prior art which may be used to stop you from obtaining a patent. Quite simply, it defines exactly those ideas in which the PTO can cite against you so as to prove that your particular invention will not be in fact novel or even to demonstrate that your invention is obvious. These eight sections may be divided into an arranged and understandable format comprising two main categories: prior art which can be dated before your date of “invention” (thus showing that you are currently not the very first inventor); and prior art which goes back before your “filing date” (thus showing that you might have waited too much time to submit for a patent).
A) Prior art which goes back just before your date of invention: It might manage to make sense that in case prior art exists which dates before your date of invention, you should not be entitled to acquire a patent on that invention as you would not truly function as the first inventor. Section 102(a) from the patent law specifically describes the points 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 the usa, prior to your date of invention. Even when there is no patent or written documentation showing that the invention was known in the usa, the PTO can still reject your patent application under section 102(a) as lacking novelty if they can demonstrate that your invention was generally known to people before your date of invention.
2) Public use in america: Use by others of the invention you are attempting to patent in public places in america, before your date of invention, could be held against your patent application from the PTO. This ought to 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 of this, and you do not deserve to obtain a patent for it.
3) Patented in the United States or abroad: Any United States 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 through the PTO. For example, assume that you invent a lobster de-shelling tool on June 1, 2007.The PTO are able to use any patents which disclose an identical 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 or abroad: Any United States Of America or foreignprinted publications (such as books, newspapers, magazines, trade journals, etc.) which disclose your invention and were published before your date of invention will stop you from acquiring a patent.Again, the reasoning here is when your conception was described publicly in a printed publication, then you certainly usually are not the very first inventor (since somebody else thought of it prior to deciding to) and you also are certainly not eligible to patent onto it.
B)Prior art which extends back prior to your filing date: As noted above, prior art was considered everything known prior to your conception of the invention or everything recognized to the general public multiple year before your filing of the patent application. This means that in numerous circumstances, even though you were the first one to have conceived/invented something, you may be unable to obtain a patent onto it if it has entered the realm of public knowledge and over one year has passed between that time as well as your filing of any patent application. The purpose of this rule would be to persuade folks to get patents on their inventions as quickly as possible or risk losing them forever. Section 102(b) of the patent law defines specifically those types of prior art which may be used against you as being a “one-year bar” as follows:
1) Commercial activity in the usa: If the invention you intend to patent was sold or offered available for sale in the usa several year before you decide to file a patent application, then you are “barred” from ever obtaining a patent on your invention.
EXAMPLE: you conceive of your own invention on January 1, 2008, and present it for sale on January 3, 2008, so as to raise some funds to get a patent. You must file your patent application no later than January 3, 2009 (one year through the day you offered it on the market).Should you file your patent application on January 4, 2009, as an example, the PTO will reject your application to be barred as it was offered available for sale multiple year prior to your filing date.This too will be the case if somebody 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 simply kept it to yourself.Also think that on February 1, 2008, someone else conceived of your invention and began selling it. This starts your one year clock running!Unless you file a patent on your invention by February 2, 2009, (twelve months from the date another person began selling it) then you definitely also will be forever barred from acquiring a patent. Remember that this provision in the law prevents you against obtaining a patent, although there is not any prior art dating back to to before your date of conception and you also are indeed the initial inventor (thus satisfying 102(a)), for the reason that the invention was accessible to the public for more than 1 year before your filing date due to one other person’s sale.Accordingly, “section 102(b) one-year bars” can ruin your chances of getting a patent even when you are the first inventor and have satisfied section 102(a).
2) Public use in the usa: In the event the invention you wish to Inventhelp George Foreman was utilized in the United States on your part or some other more than one year before your filing of the patent application, then you definitely are “barred” from ever obtaining a patent on your invention. Typical samples of public use are once you or another person display and utilize the invention in a trade exhibition or public gathering, on tv, or anywhere else where the public has potential access.People use do not need to be one that specifically promises to create the public aware of the invention. Any use which may be potentially accessed by the public will suffice to begin with the main 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 other printed publication on your part or by another individual, accessible to the public in america or abroad several year before your filing date, will prevent you from getting a patent on your own invention.Be aware that even an article published by you, about your own invention, will start the one-year clock running.So, for instance, in the event you detailed your invention in a natmlt release and mailed it out, this might start the main 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 main topic of your invention.
4) Patented in the United States or abroad: In case a U . S . or foreign patent covering your invention issued more than a year prior to your filing date, you will end up barred from obtaining a patent. Compare this with all the previous section regarding United States and foreign patents which states that, under 102(a) of the patent law, you are prohibited from obtaining a patent in the event the filing date of another patent is earlier than your date of invention. Under 102(b) which we have been discussing here, you can not get a patent upon an invention which was disclosed in another patent issued over last year, even though your date of invention was prior to the filing date of that patent.