BASIC FACTS ABOUT PATENTS
What's a patent all about?
A detailed introduction to US patents is available from the US Patent and Trademark Office (http://www.uspto.gov).
The basic concept behind patents was laid out by the English parliament in
1623 as part of a law prohibiting almost all monopolies. One of the very few
exceptions they allowed was a monopoly grant, good for about 20 years, to
anyone who took the entrepreneurial risk of bringing a new product to the
market, and who publicly disclosed the source of that product so that
competition could start as soon as the patent expired. At this basic level, not
much has changed in over 350 years. A
Do I need to get a patent in order to sell my product?
No. A patent is meant to keep somebody else from making, using or selling your claimed invention without your permission. In fact, if you get a patent on an improvement for a product protected by someone else's patent, you may need to get a license from the earlier inventor before going into business.
What is patentable?
Utility patents are granted for new and useful processes, machines, articles of manufacture or compositions of matter. In the US one can file a provisional application for a utility patent, or apply for a design or plant patent, but when someone says "patent" he or she is almost always referring to a utility patent.
Just how "new" does the invention have to be?
There are two major parts to the definition of "patentably new".
The first of these requires the invention to be new in a narrow, but
unambiguous sense. The invention satisfies this first test as long as there is
no earlier patent, product, or published reference that has all of the
invention's claimed features. The second part of the definition requires the
invention to be more than just a small straightforward improvement. In the US
this limitation is stated by requiring that the subject matter of the
invention, taken as a whole and considered at the time at which the invention
was made, is not obvious to a person having ordinary technical skill in the
art. In the European Patent Office and in international applications under the
Patent Cooperation Treaty (PCT) the same sort of
prohibition on patenting small, obvious improvements is handled by requiring
"an inventive step". Either one of these approaches puts a healthy
dose of ambiguity into the examination process. There is always room to argue
about what would have been obvious when the invention was made, or how big a
change has to be before it becomes inventive.
How much protection does a patent really give me?
The degree to which the invention is both new and unusual sets a basic limit on the breadth of available protection. A patent novelty search can often help the inventor decide if seeking patent protection is worthwhile.
How the patent application is written also sets important limits on protection. A poorly written patent can deprive an invention of much or all protection. The prospective patentee should expect his or her agent or attorney to ask about alternate ways of carrying out or using the invention so that the application can justify the broadest allowable claims.
What is protected by a patent is what is described in its claims. The claims
should be written to withstand a hostile reading by someone who would like to
design around, or otherwise avoid the patent. From a patent owner’s
perspective, no other reader matters.
What does "patent pending" mean?
Only that a patent application has been filed. In the US, patent rights do not exist until the application has been examined and allowed and a patent actually issues. Nevertheless, a "pat. pending" marking can discourage competition by putting the would-be competitors on notice that they may lose their start-up costs when the patent issues and they have to close up shop.
David
A. Kiewit
Registered Patent Agent
St. Petersburg FL 33705-5305
+1 (727) 656-0669 voice
+1 (760) 841-0989 fax
questions to:
[email protected]
Copyright 2002-2017 by David A. Kiewit
All rights reserved
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