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A patent is a right granted to an inventor by the federal government that permits the inventor to exclude others from making, selling, or using the invention for a period of time. The patent system is designed to encourage inventions that are useful to society. Congress was given the power to grant patents in the Constitution, and federal statutes and regulations continue to govern patents. The US Patent and Trademark Office (USPTO) grants patents for inventions that meet statutory criteria.

There are three different kinds of patents: utility patents, design patents and plant patents. Utility patents, the most common type, are granted to new inventions that perform useful functions, such as new machines, chemicals, and processes. Design patents are granted to protect the unique appearance or design of manufactured objects, which may include surface ornamentation or the overall design of the object. Plant patents are granted for the invention and asexual reproduction of new and distinct plant varieties, including hybrids. Asexual reproduction occurs when a plant is reproduced by means other than from seeds, such as through grafting or rooting cuttings.

For an invention to qualify for a patent, it must be new, useful, and nonobvious. For an invention to be considered new, it must be different from other similar inventions, and must not have been publicly used, sold, or patented by another inventor within a year before the date the patent application was filed. This rule reflects the public policy favoring quick disclosure of technological progress. An invention is nonobvious if someone who is skilled in the field of the invention would consider the invention an unexpected or surprising development. While this sounds simple, determining whether something is nonobvious can be an extremely complex process of analysis. An invention is deemed useful if it has some beneficial use and is operable. A machine that will not operate to perform its intended purpose would not be considered useful, and therefore, would not be granted a patent. The threshold for showing an invention is useful is not particularly high, but it should be noted that an invention that might be considered as immoral or injurious to wellbeing would not be classified as useful. For example, an unsafe drug would not be patentable.

A useful invention may qualify for a utility patent only if it falls into one of five categories: a process, a machine, a manufacture, a composition of matter, or an improvement on one of these. A process is a method, operation, or series of actions intended to achieve some new and useful end or result by changing a material's chemical or physical characteristics. A machine is a device or apparatus consisting of fixed and moving parts that work together to perform a specific function. The term manufacture refers to a product that is made or built by a human being, as distinguished from something that is a product of nature. A manufacture does not include a machine, composition of matter or design. Examples of manufactures include chairs or tires. Compositions of matter refer to substances that are gases, fluids, powders or solids, and include combinations of natural elements whether resulting from chemical union or from mechanical mixture. An improvement is betterment of an existing process, machine, manufacture, or composition. These categories include practically everything made by humans and the processes for making the products.

Examples of things that are patentable include:

  • Computer software and hardware
  • Chemical formulas and processes
  • Genetically engineered bacteria, plants and animals
  • Drugs
  • Medical devices
  • Sports equipment
  • A method to treat a disease
  • Furniture design
  • Jewelry
  • Fabrics and fabric design
  • Musical instruments

Naturally occurring substances and laws of nature, even if they are newly discovered, cannot be patented. Abstract principles, fundamental truths, calculation methods and mathematical formulas also are not patentable. A process that uses such a formula or method can be patented, however. For example, a patent has been granted for an industrial process for molding rubber articles that depends upon a mathematical equation and involves the use of a computer program. A patent cannot be obtained for a mere idea or suggestion. The inventor must have determined a concrete means of implementing the idea in order to obtain a patent.

Unlike a copyright, a patent does not arise automatically; an inventor must apply for a patent. The inventor must apply within one year of publicly disclosing the invention, such as by publishing a description of the invention or offering it for sale. An inventor, or their attorney, generally makes a preliminary patent search before applying for a patent to determine if it is feasible to proceed with the application. The application and a fee are submitted to the USPTO, where it is reviewed by a patent examiner. This can be a lengthy process, and roughly 90 per cent of all applications are rejected for failing to meet one of the necessary requirements. If a patent is granted, the inventor must pay another fee, and the government publishes a description of the invention and its use. Only a patent attorney or patent agent may prosecute patents before the USPTO. Before a person may be licensed as a patent attorney or patent agent, she must have a degree in certain technical or scientific fields.

The life of a patent differs in length depending on the type of patent. Utility and plant patents last for twenty years from the filing date of the application; design patents last for fourteen years from the date the patent is actually granted. If the owner of a utility patent does not pay maintenance fees, the patent will expire earlier. Patents cannot be renewed. After a patent expires, the invention becomes public property and can be used or sold by anyone. For example, after the patent on Tylenol expired, other pharmaceutical companies began producing a generic version of the drug.

If an inventor thinks someone has used, imported, sold or offered to sell their patented invention without permission, the inventor may bring a lawsuit against the infringer. If the court agrees, it may award the patent holder costs, attorneys' fees, and damages in an amount equal to a reasonable royalty and/or lost profits and an injunction (an order prohibiting another person from infringing the patent). If it is shown that someone deliberately infringed a patent, the penalties become much more severe. An action for infringement can be time-consuming and costly, so infringement cases often are settled out of court.

Learn More: Reasons to Contact an Intellectual Property Attorney

To read and print out a copy of the checklist, please follow the link below.

Reasons to Contact an Intellectual Property Attorney

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DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

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