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IP Guidepost beta "Guiding You Through the World of Intellectual Property" |
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Patents
Patent Resource Links
Under Construction An Introduction to Patents, Patentability, and the Patenting System: by Brian Lally What is a Patent? Patents are legally enforceable property rights granted by a government to a patentee (the inventor or assignee) in exchange for public disclosure of an invention (i.e. apparatus, method, substance etc.) which meets all of the requirements for patentability. Patents grant the patentee a monopolistic right to exclude others from practicing the claimed invention for a set period of time (usually 20 years). It is important to note that a patent does not necessarily grant the patentee the right to use, make, sell or import the invention but rather grants the patentee the right to exclude others from doing so.
Types of Non-Provisional U.S. Patents
In the United States there are three types of non-provisional patents: (1) utility patents, which cover new and useful processes, machines, article of manufactures, or compositions of matter, or any new and useful improvements thereof; (2) design patents which cover new and original "ornamental designs" of articles of manufacture, and (3) plant patents which cover plants which have been invented or discovered and asexually reproduced any distinct and new variety of plant (other than tuber propagated plants or plants found in an uncultivated state. (Expand see, plantpatent.com see also plant variety protection) Provisional Patent Application Provisional patent applications are a cost effective means for establishing a filing date. In essence, provisional applications act as place holders which allow inventors twelve months to file a non-provisional and/or PCT application on the disclosed invention while giving the invention the filing date of the provisional. The provisional application is a cost effective way of establishing a filing date without the formal requirement of claims, oath/declaration, or information disclosure statement. The USPTO began offering inventors the option to file provisional patent applications in 1995 in order to provide a domestic filing path that would grant applicants the extra 1 year of protection that was previously only available to those who filed a foreign application prior to a U.S. patent filing. PCT Patent Application PCT applications are a international patent application which allow applicants to filed one PCT application in lieu of filing a series of national applications. The single PCT application is much less expensive then filing application in multiple jurisdictions. Although PCT applications do not eliminat the need to filed national applications it does provide a cost effective means for delaying national stage applications an additional 18 months. If a PCT is utilized, national stage filings can be delayed up to a total of 30 months from the effective filing date. This extra time gives the inventor Patentability In order to be awarded a patent, an invention must be: of patentable subject matter, novel, nonobvious, and useful. (1) Patentable Subject Matter (2) Novelty: Novelty means that the invention must not have been known prior to the effective filing date of the patent application. The U.S. and Japan have a relative novelty requirement which means there is a grace period (i.e. one year) that allows an inventor to file a patent application after publication without losing protection. Most other countries have an absolute novelty requirement which bars protection after any prior written or verbal disclosure or public use of the invention. (3) Nonobvious: In addition to being novel, an invention must also be unobvious (or in the EU have in inventive step). Nonobviousness is generally described as that which would be nonbovious to "one skilled in the art" at the time the application is filed. When assessing nonobviousness, the court look to four factors: 1. the scope of the prior art; 2. the level of skill in the art 3. the difference between the claimed invention and the prior art and 4. objective evidence of nonobviousness including: commercial success, long felt but unresolved need, and failure of others. See, _________________. 103 (4) Utility: in addition formal requirements: adequate disclosure, unity of invention, best mode. The Patenting Process Patent Application Patent Laws and Agreements Patent Infringement Rationale for Patents
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