Patents
What is a patent?
A patent is a right granted by the government to the inventor on the subject invention. A patent gives the inventor the right to prevent others from making or selling the patented invention. The patent, however, does not give its owner the right to practice the patented invention.
For example, if an inventor discover a new and novel composition and obtained a patent on that composition, the inventor should be able to prevent others from making or selling the patented composition. However, the inventor may not be able to make or sell his own patented composition, if some one else owns a patent on a method for making that composition. A case in point is Pencillin. The British company that made the drug could not sell it in the US because another company owned a patent on a method for making Pencillin.
Who can apply for a patent?
A patent may be applied for only in the name(s) of the actual inventor(s).
What can be patented?
A. Utility patents are available for a new, non-obvious and useful process,
machine, article of manufacture, composition of matter or improvements of any of these things.
B. Design patents are available for new and non-obvious ornamental designs for articles of manufacture.
C. Patents are also available for invented or discovered asexually reproduced, distinct and new varieties of plants, including cultivated sports, mutants, hybrids, and newly found seedlings, other than a tuber propagated plant or a plant found in an uncultivated state.
What cannot be patented?
• Laws of nature;
• Physical phenomena; and
• Abstract ideas which are not useful (such as perpetual motion machines) or offensive to public morality.
How long does patent protection last?
For applications filed on or after June 8, 1995, utility and plant patents are granted for a term which begins with the date of the grant and usually ends 20 years from the date the inventor first applies for the patent, subject to the payment of appropriate maintenance fees. Design patents last 14 years from the date the patent is issued. No maintenance fees are required for design patents.
What can I do with a Patent?
File a lawsuit against any infringer and obtain actual and possibly punitive damages
Sell the patent rights to your invention
License the rights to use, make and sell the invention
Block other companies from practicing their own technologies and force them to obtain a license to your patent.
Patenting steps
The United States Patent and Trademark Office suggests that inventors follow the following steps when applying for a patent.
Step 1. Determine if the invention is patentable.
Before you file for a patent, you should determine if your invention patentable. An invention cannot be patented if “(a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a 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 a 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.”
Even if the subject matter sought to be patented is not exactly shown by the prior art, and includes one or more different features from the prior art, an invention may still be rejected if the differences between the invention and the prior art would have been obvious to a person having ordinary skill in the art. For example, the substitution of one color for another, or a change in size, are ordinarily not patentable.
Patent law specifies that an invention’s subject matter must be “useful.” The term “useful” refers to the condition that the subject matter has a useful purpose. A machine that does not perform its intended purpose or does not operate is not useful, and therefore can’t be patented.
Step 2. Conduct a search of the prior art.
A search of all previous public disclosures including, but not limited to, previously patented inventions in the U.S. should be conducted to determine if your invention has been publicly disclosed. While a search of the prior art before the filing of an application is not required, it is advisable to do so.
Step 3. Draft and File a patent application.
To get a U.S. patent, you must file an application with the U.S. Patent and Trademark Office. The USPTO states “patent application is a complex legal document, best prepared by one trained to prepare such documents.” There are two types of patent applications: a non-provisional application, which includes: (1) a written document which comprises a specification (description and claims), and an oath or declaration; (2) a drawing in those cases in which a drawing is necessary; and (3) filing, search, and examination fees; and a provisional application that includes a written description of the invention, drawings if necessary, the filing fee and a cover sheet specifying that the application is a provisional application. Claims and oath or declaration are not required for a provisional application. The filing date of a provisional application is the date on which a written description of the invention, and drawings if necessary, are received in the USPTO. Provisional application provides the means to establish an early effective filing date in a patent application and permits the term “Patent Pending” to be applied in connection with the invention. Note, provisional applications may not be filed for design inventions. After filing the provisional application, the applicant has up to 12 months to file a non-provisional application for patent. The claimed subject matter in the later filed non-provisional application is entitled to the benefit of the filing date of the provisional application if it has support in the provisional application.