Patents, What You Need To Know

A patent is an exclusive right granted for an invention. Generally speaking, a patent provides the patent owner with the right to decide how - or whether - the invention can be used by others. In exchange for this right, the patent owner makes technical information about the invention publicly available in the published patent document.

Where did the idea come from?

"A patent for an invention is the grant of a property right to the inventor, issued by the Patent and Trademark Office. The term of a new patent is 20 years from the date on which the application for the patent was filed in the United States or, in special cases, from the date an earlier related application was filed, subject to the payment of maintenance fees. US patent grants are effective only within the US, US territories, and US possessions.

The right conferred by the patent grant is, in the language of the statute and of the grant itself, “the right to exclude others from making, using, offering for sale, or selling” the invention in the United States or “importing” the invention into the United States. What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention."

So a patent is a property right. That idea for that comes all the way back from the original constitution. That right was granted by the U.S. government to an inventor to exclude others from making, using, offering for sale, or selling the invention throughout the U.S. or importing the invention into the U.S.

Included in this definition of patent is the notion of a limited monopoly. For a defined period of time. In return for that right, the inventor must provide a public disclosure of the invention in the form of the issued patent. Although many people view patents as something that impedes the spread of technology the intent is exactly the opposite. The patent has to completely describe the technology to enable others to copy it - after the period of limited monopoly is over. You can see that intent also in the maintenance fee framework of patents, in which the patent owner has to pay an escalating series of maintenance fees over time - which actually encourages inventors to give up the patent to the public unless they are using it.

Some other aspects of the definition of patent:

To be patentable, an invention must be novel, non-obvious and adequately described for one of ordinary skill in the art to make and use the invention.

Patent law and the definition of patent falls under part of the United States Codes called 35 USC.

Novelty is specifically called out in U.S.C 35 § 102. A more rigorous and full explanation of novelty can be found here.

Non-obviousness is specifically called out in U.S.C 35 § 103. A more rigorous and full explanation of non-obviousness can be found here.

In addition, the invention must be claimed in clear and definite terms. This a called the section 112 requirement and is discussed more fully here.

I have found that most business people don't have too much trouble understanding the definition of patent when it comes to novelty. Obviousness however, can sometimes be non-obvious. And battles over validity with the patent office often come down to non-obviousness arguments. That's where patent prosecutors earn their pay.

To qualify for patent protection, an invention does not have to be totally new. It can be an improvement on existing items or methods. Even a small functional or decorative improvement may be patentable. Utility patents may be granted for a process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof. Design patents may be granted for the ornamental design for an article of manufacture. Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.

One other aspect of the definition of patent is the question of what can be patented.

The guidelines are that laws of nature, physical phenomena, and abstract ideas are not patentable. Then throw in inventions which are not useful, such as perpetual motion machines. Although that does not stop people from trying.

Literary, dramatic, musical, and artistic works are not protected by patent, but can be protected by Copyright.

Names, logos, slogans and other things which identify the source of a product or service can be protected as Trademarks.

Who Can Apply for and Own a Patent?

A patent may be applied for only in the name(s) of the actual inventors, but an inventor may transfer all or part of his or her interest in the patent application or patent to anyone by an assignment. Patents can also be licensed exclusively or non-exclusively.

How Long Does Patent Protection Last?

Utility and plant patents are granted for a term which begins with the date of the patent and usually ends 20 years from the filing date, subject to the payment of maintenance fees. Design patents last 14 years from the date the patent is granted, and no maintenance fees are now required.

Is a Patent Valid in Foreign Countries?

A U.S. patent protects your invention in this country only. For more information on that see Foreign Patents.

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