An inventor has as exclusive right to use their own invention. Patent law is the area of the law that protects that right. If you have spent time, effort, and money to create a one-of-a-kind product, you need to ensure you have a patent in place to protect your invention.
Patent law is part of intellectual property law and is protected under U.S. federal law. Patent law is the area of law that deals with an inventor’s exclusive right to use their own invention. Patent law protections aim to encourage the creation of new products and inventions through granting creators the legal right to use and profit from the inventions they create.
United States patent law is a part of U.S. federal law that comes directly from the United States Constitution as well as from federal laws passed early in United States history.
Holding a Patent
Once an inventor has created his or her invention, he or she will apply for a U.S. patent through the United States Patent and Trademark Office (USPTO). If the submitted application is accepted, the patent holder retains the exclusive right to use and profit from their product. The length of that patent is dependent upon the type of patent submitted for.
When someone holds a patent, that patent holder may challenge any person or corporation who tries to infringe on their patent rights. When a patent holder accuses another person or corporation of patent infringement, the dispute must be litigated. Patent attorneys help their clients apply for patents, enforce patents, and challenge any patent infringement if it happens.
The founders of the United States and early political leaders believed that a if a person invented a product, they had the right to own that invention, and thus wrote laws that would protect, and hopefully inspire, the creation of new products that would benefit society as a whole.
Under Article 1, Section 8 of the U.S. Constitution, Congress has the power to establish a system for awarding patents in the United States. According to the Constitution, Congress may promote progress in science and the arts by allowing creators to have exclusive use of their products. Tile 35 of the United States code holds more specific laws for the U.S. patent system.
What Inventions Qualify for Patents?
There are four types of inventions that can be protected under parent law. They are:
Process (or Method) – for producing a useful, concrete, and tangible result (examples include genetic engineering procedures, an investment strategy, computer software, or a process for conducting e-commerce on the Internet).
Machine – this is a concrete thing or device with moving parts or circuitry that either produces a function or creates a result (examples include cigarette lighters, a sewage treatment system, a laser, or a photocopier).
- An Article of Manufacture – An item or tangible object (examples include erasers, tires, or a hand tool).
Composition of matter – The combination of two or more chemical compounds. This composition may be the result of chemically combined substances or a mixture (examples include chemical composition, a drug, a soap, or a genetically altered lifeform), or
- an improvement of an invention that fits within one of the first four categories.
In addition to these categories, there are also some other requirements an invention must meet.
Useful, Novel, and Nonobvious
When an invention fits into one of the categories listed above, it is known as “statutory subject matter.” Once satisfying these requirements it has passed the first test in qualifying for a patent. But an inventor’s creation must also have the following qualities:
- have some usefulness (utility), no matter how trivial
- be novel (that is, be different from any previous invention in some important way)
- be nonobvious (a surprising and significant development) to somebody skilled and who understands the technical field of the invention.
A Patent Must be “Novel”
In addition to the above qualifications, a patent must be “novel”. When it comes to patent application, an invention is considered “novel” when it is unique and different from all previous inventions (called “prior art”) in one or more of its elements. When determining whether an invention is novel, the USPTO will consider all prior art in existences as of the date of the newly submitted piece’s patent application.
It’s important to note that an invention can fail the novelty test if it was described in a published document or put to public use prior to the date the patent application was filed. The only exception is if the actual inventor-applicant created the publication the piece was filed in and that publication was made up to one year before the filing date.
Because of this, it is always advised that an inventor not to publish any information about their creation before filing a patent application. By doing so, the inventor will lose foreign filing rights and another person may see the publication and file a separate application on it before the true inventor files, thus requiring an expensive and uncertain derivation proceeding.
Additionally, an item or idea can be deemed ineligible if it is obvious or common. A person is not able to receive a patent on an item that is already common, such as a fork, simply because no one else has thought to patent the item yet. There must be something special or creative about the invention.
A Patent Must be “Nonobvious”
In addition to being “novel,” an invention must also be “nonobvious”. An invention is considered nonobvious if someone skilled in the particular field of the invention would view the invention as an unexpected or surprising development.
What Does Not Quality for a Patent?
Some types of inventions will not be eligible for patent protection, regardless of how interesting or important they are.
For example, mathematical formulas, laws of nature, newly discovered substances that occur naturally in the world, and purely theoretical phenomena—such as a scientific principle like superconductivity—are not eligible to be patented.
In addition, the following categories do not qualify for patents:
- Processes controlled entirely by human motor coordination, such as choreographed dance routines or methods of meditation
- most protocols and methods used to perform surgery on humans
- printed matter that has no unique physical shape or structure associated with it
- unsafe new drugs
- inventions that are useful only for illegal purposes, and
- non-operable inventions, including “perpetual motion” machines (which are presumed to be non-operable because to operate they would have to violate certain bedrock scientific principles), and
- creative content such as poetry, books, or music. These could be potentially subject to copyright protection rather than patent protection. If you are interested in protecting one of these, it’s advised that you still contact an attorney that would be able to advise you on protections available.
The Application Process
To receive a patent, an applicant must file their request with the USPTO. It is always advised that you work with a patent attorney due to the intense process. The filing requirements are detailed and specific and the entire process can take as long as three years and cost as much as $30,000. The Manual of Patent Examination Procedure contains the rules for filing a patent application, but you’ll want to work with a patent attorney to prepare this.
Contained in a Patent Application
A patent application must contain the following:
- Title of the invention
- List of related patent applications
- Statement of federally funded research associated with the item
- Disclosure of joint research with any other individual or corporation
- Summary of the invention
- Detailed description of the invention
- Drawings that explain the item in detail
- Claim of patent
The patent application must be sufficiently detailed so that it allows a person with skill in the field to create and use the same product. The application must clearly define and distinguish what’s new about the item or process compared to what is already in existance. If the patent office denies a patent application, the applicant can seek to be reconsidered or they can appeal the denial to the Board of Patent Appeals and Interferences. A rejected applicant may also bring their case to a court.
It should be noted that once you file for a patent, the process is not complete. Under United States patent law, when a person files for a patent the legal document, called a “provisional application” establishes an early filing date, but this does not mature into an issued patent until the applicant files for a regular non-provisional patent application within one year.
The provisional patent application can only be pending for 12 months prior to becoming abandoned. Thus, filing a non-provisional patent application that claims the benefit of the provisional application must be done within 12 months. Failure to do so may forfeit your rights to claim the benefit of provisional application. Such benefits of the provisional application include:
- ease of preparation,
- lower cost, and
- the ability to use the term “patent pending”
One you file for the provisional application you are able to use the term “patent pending.” This can only only be legally used when a patent application has been filed, and may have significant marketing advantages for your product.
Patent Infringement and Enforcement
If a patent holder has reason to believe someone has infringed on their rights, he or she has multiple avenues to pursue enforcement. The first step is to contact a patent law attorney. The patent holder is able to pursue a court action, seek financial remedy, file an injunction or seek the court’s powers of contempt.
A patent holder can also file a complaint with the United States International Trade Commission which will then investigate the claim. Two potential remedies are barring imports into the United States as well as the issuance of a cease and desist order for imports. Patent holders may pursue both ITC enforcement and legal remedies and it is always advised you work with an attorney skilled in patent law when seeking to protect your inventions.
Having prepared, filed, and prosecuted patent applications (domestic and foreign), our firm is highly respected for its knowledge and patent prosecution.
Our attorneys have experience in all areas of design patents, including:
- Patent Applications
- Patent Search
- Intellectual Property Patents
- Computer Patents
- Gaming Devices
- Mechanical Device Patents
- Medical Device Patents
- Patent Portfolio Management
- Patent Office Actions
- International Patents
- Patent Litigation
Reilly Intellectual Property Law Firm
Reilly Intellectual Property Law Firm provides patent services to protect the inventions that change and shape our world. We handle handles patents, trademarks, copyrights and licensing legal services in Denver. Our experienced attorneys provide strategic guidance, patent counseling and prosecution, new product clearance and licensing, as well as counsel regarding patent enforcement and how to avoid possible infringement issues.
Our patent attorneys actively and aggressively represent plaintiffs and defendants in a wide variety of proceedings before courts both domestically and internationally. We provide solutions that anticipate our client’s need to protect their intellectual property so that their business thrives. We would love to work with you to develop a dynamic strategy that addresses your patent, trademark, copyright, and licensing concerns.