Patent is a document issued by a national government granting an inventor exclusive rights to an invention for a limited time. A patent gives an inventor, or any other owner of the patent, the right to prevent others from making, selling, importing, or using the invention in the country that granted the patent. In the United States, patents are administered by the United States Patent and Trademark Office.
To be eligible for a patent, an invention must be new, useful, original, and not easily discovered or created. United States patent laws consider inventions to include machines, methods, manufactured products, and compositions, plus new uses of inventions in each of these categories. Patents for these inventions and new uses are called utility patents. Utility patents may also be obtained for improvements of inventions and for most new varieties of plant life. Utility patents have also been granted for forms of life created in a laboratory by genetic engineering. These life forms have included certain types of corn and mice as well as many kinds of microorganisms. Another type of patent, called a plant patent, is available for nonpollinating plants. A third kind of patent, known as a design patent, covers only the appearance of an article.
An invention that would be obvious to anyone of ordinary skill in a given field cannot be patented. Such an invention might involve merely a substitution of materials, a change in the size of a machine, or a combination of known concepts without new and unexpected results.
How patents protect inventors
Patents give their owners a legal monopoly of an invention. In the United States, the monopoly granted by utility patents and plant patents gives the inventor a legal monopoly of an invention. This monopoly begins on the date the patent is issued and expires 20 years after the patent application was filed. The monopoly can be extended for up to 5 years if certain delays occur in the Patent and Trademark Office, in the courts, or in the U.S. Food and Drug Administration. Design patents are issued for 14 years. A patent can be renewed only by a special act of Congress.
Anyone who applies for a patent must pay a filing fee and, if the application is allowed, an issue fee. Utility patent holders who wish to keep their patents in force for the full 20-year period must make additional payments 31/2, 71/2, and 111/2 years after their patents were issued.
On average, the Patent and Trademark Office takes more than a year to process a patent application. To avoid delay in getting a newly invented product on the market, most manufacturers start to produce it soon after filing for a patent. The manufacturer marks the product “Patent Pending” or “Patent Applied For.” This warning has no legal value, but it discourages imitation. A patented invention may be marked “Patented,” together with the patent number. Copying a patented invention without permission is called infringement. The patent owner may sue for damages and a court order requiring the infringer to stop copying the invention.
An inventor may sell all or part of the rights given by a patent. The inventor may also license these rights to a manufacturer. Licensing gives the inventor a fee or royalties (payments based on sales), or both.
How to get a U.S. patent
Most governments grant a patent to the inventor who first applied for it. But in the United States, it is granted to the applicant who was the first inventor. For initial protection, an inventor should record the date the invention took shape in the mind and draw a sketch with a description of the idea. This document should be dated and signed by the inventor and two witnesses. It should be kept in a safe place.
By filing a provisional patent application, an inventor can establish a date of invention before building and testing the invention. Unlike regular patent applications, provisional applications need not include claims. Claims define the scope of the invention and may take much time to prepare. The inventor obtains the benefit of the provisional application filing date only if he or she files a regular application within a year.
The preparation of a regular patent application that will fully protect the invention requires specialized legal knowledge. Most inventors use the services of a patent attorney or a patent agent who is registered to practice before the Patent and Trademark Office. Before filing an application, the inventor or the inventor’s attorney usually has a search conducted. The search involves a study of government patent files to determine whether a patent or other publication already describes the invention. United States law permits inventors to wait up to one year from the date of the publication, offer of sale, or sale of their inventions to apply for a patent.
A patent application consists of a specification (description), one or more drawings of the invention, and one or more claims. After the Patent and Trademark Office receives an application, an examiner conducts an official search of the patent files to learn whether the invention has already been patented or otherwise published. The application is then accepted or partially or completely rejected. If it is accepted, the inventor receives a notice of allowance. After payment of the issue fee, the specification and claims are printed, and the inventor receives a patent. If the application is rejected, the inventor may amend the claims and argue for the patentability of the invention. If again rejected, an appeal may be made to the Patent and Trademark Office’s Board of Patent Appeals and Interferences. If this fails, the decision can be challenged in court.
Patent laws of other countries
Patent laws vary from country to country. Most of the patent laws follow the principle that a patent is a bargain between the inventor and society. Inventors reveal their secrets in exchange for a monopoly for a limited amount of time. Society receives the benefit of the inventors’ sharing their secrets. But the laws of various countries differ regarding the conditions under which applicants may make public their inventions before receiving a patent.
International patent agreements
A patent treaty now recognized by almost 100 nations, including Canada and the United States, went into effect in 1884. Each nation agrees to give citizens of the other countries the same rights to obtain a patent as it gives its own citizens. The treaty also benefits people who apply for a patent in their own country and then apply in any of the other countries within a year. Their later applications are treated as having been made on the same date as the one made in their own country.
In 1978, the Patent Cooperation Treaty (PCT) took effect. It provides for a search and a standard application form. Under this treaty, each nation retains its own patent laws, but the standard application replaces an individual nation’s application. Each country then largely relies on the PCT search.
