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 US utility patent gives its owner the right to stop anyone else from practicing a claimed invention, in the US, for up to 21 years from the date an initial application was filed. After that, anybody can practice the invention (Patents are not renewable). In return for this limited monopoly the inventor has to disclose the invention in sufficient detail so that anyone who is ordinarily skilled in the relevant technical art can use it. If an idea has not been developed far enough for the inventor to provide the essential "how to" instructions, it is not yet patentable.

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, patents are not actually enforceable 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
5901 Third St. South
St. Petersburg FL 33705-5305
+1 (727) 656-0669 voice

+1 (760) 841-0989 fax
questions to: dak@patent-faq.com
Copyright 2002-2013 by David A. Kiewit
All rights reserved

 

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