THE PATEL LAW FIRM

WHAT IS A PATENT?

 

A patent for an invention is grant of a property right to the inventor, issued by the United States Patent and Trademark Office. There are three types of patents: Utility Patents, Design Patents and Plant Patents. A utility patent is valid for 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. United States patent grants are effective only within the United States, US territories, and US possessions.  The term of the design patent is 14 years from the date of issuance.

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 you have is a RIGHT TO EXCLUDE others from making, using, offering for sale, selling or importing the invention and NOT THE RIGHT TO make, use, offer for sale, sell or import. 

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WHAT CAN BE PATENTED?

 

Patent law specifies the general field of subject matter that can be patented and the conditions under which a patent may be obtained.  

According to the United States Supreme Court, patentable subject matter was intended to “INCLUDE ANYTHING UNDER THE SUN THAT IS MADE BY MAN.”  However, the subject matter that is to be patented has to be “useful.” The term “useful” refers to the condition that the subject matter has a useful purpose and also includes operativeness. For example, if a machine which will not operate to perform the intended purpose would not be granted a patent.

Federal courts have held that the laws of nature, physical phenomena, and abstract ideas are not patentable subject matter. A patent cannot be obtained upon a mere idea or suggestion. The patent is granted upon the new machine, manufacture, etc., as explained below, and not upon the idea or suggestion of the new machine. A complete description of the actual machine for which a patent is sought is required.

Any person who “invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent,” subject to the conditions stated in the patent law. The word “process” is defined by law as a process, act or method, and primarily includes industrial or technical processes. The term “machine” is self-explanatory. The term “manufacture” refers to products that are made or manufactured. The term “composition of matter” relates to chemical compositions and possibly includes mixtures of ingredients as well as new chemical compounds. Patent law also allows business methods to be patented, which have become very popular during the last few years.

Inventions useful solely in the utilization of special nuclear material or atomic energy for atomic weapons cannot be patented.

 

NOVELTY AND NON-OBVIOUSNESS CONDITIONS FOR OBTAINING A PATENT: 

 

To be patentable, an invention must be new as defined in the patent law. An invention cannot be patented if: (a) it was known or used by others in this country, or patented or described in a printed publication in this or any foreign country, before the invention thereof by the applicant for patent; or (b) the invention was patented or described in a printed 
publication in this or any foreign country or in public use or on sale in this country more than one year prior to the application for patent in the United States.

If the invention has been described in a printed publication anywhere in the world, or if it has been in public use or on sale in this country before the date that the applicant made his/her invention, a patent cannot be obtained.  Additionally, if such publication, public use or sale occurs more than one year before the date on which an application for patent is filed in this country, a patent cannot be obtained. In this connection, it is immaterial when the invention was made, or whether the printed publication or public use was by the inventor himself/herself or by someone else. If the inventor describes the invention in a printed publication or uses the invention publicly, or places it on sale, he/she must apply for a patent before one year has gone by, otherwise any right to a patent will be lost. The inventor must file on the date of public use or disclosure, however, in order to preserve patent rights in many foreign countries. Even if the subject matter sought to be patented is not exactly shown by the prior art, and involves one or more differences over the most nearly similar thing already known, a patent may still be refused if the differences would be obvious. The subject matter sought to be patented must be sufficiently different from what has been used or described before that it may be said to be non-obvious to a person having ordinary skill in the area of technology related to the invention. For example, the changes in color or size are ordinarily not patentable.