Time for sharp competitive intelligence

Patent Basics

Purpose:
A patent gives you, the inventor, the exclusinve right to make, use, or sell your invention. The entire rationale for granting inventors patents is “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries,” as stated in Article 1, Section 8 of the U.S. Constitution.

What is an Invention?
Inventions are solutions to specific problems in the field of technology.

Types of Patents:

  • Utility – A utility patent protects the way an article is used and works. (U.S.C.,Title 35, Sec. 101.). A utility patent, the most common type of patent, covers inventions that function in a unique manner to produce
    a utilitarian result. Examples of utility inventions are Velcro fasteners, new drugs, electronic circuits, software, semiconductor manufacturing processes, new bacteria, new animals, plants, automatic transmissions,
    and virtually anything else under the sun that can be made by humans. This book is devoted primarily to utility patents.
  • Design – A design patent covers the unique, ornamental, or visible shape or design of a useful object. Thus if a lamp, a building, a computer case, or a desk has a truly unique appearance, its design can be patented. Even computer screen icons can be patented. However, the uniqueness of the design must be purely ornamental or aesthetic; if the shape is functional and aesthetic, then only a utility patent is proper. A useful way to distinguish between a design and a utility invention is to ask, “Will removing the novel features substantially affect the function of the device?” For example, removing the carved wood design in the headboard of a bed would not affect how the bed functioned and could be protected as a design patent. On the other hand, a baseball bat and fishing rod may have pleasing designs but unless they have non-functional aesthetic features, their shape is purely functional and suitable only for a utility patent.
  • Plant – Protects the discovery of new varieties of plants. A plant patent covers plants that can be reproduced through the use of grafts and cuttings such as flowers. These are referred to as asexually reproducible
    plants. (35 U.S.C. § 161.) The Plant Variety Protection Act covers those plants that use pollination (sexually reproducible plants). (7 U.S.C. § 2321.) Under some circumstances, utility patents can cover sexually and asexually reproducible plants.

What is Patentable?
There are four categories of inventions that Congress deemed to be the appropriate subject matter of a patent: processes, machines, manufactures and compositions of matter. (U.S.C., Title 35, Sec. 101.)

  1. Process means a process, art, or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material.
  2. Process inventions consist of a series of steps or acts to be performed, namely a model of treating certain materials to produce a given result.
  3. It is an act, or a series of acts, performed upon the subject matter to be transformed and reduced to a different state or thing.
  4. A process requires that certain things be done with certain substances, and in a certain order.

What is not Patentable?
While the Supreme Court stated that “anything under the sun that is made by man is patentable,” this famous quotation does have limits. First, the United States Code requires that the subject matter sought to be patented be a “useful” invention. (U.S.C., Title 35, Sec. 101.). Second, you cannot patent the following:

  • Frivolous or obvious inventions.
  • Inventions which could be contrary to law or morality or injurious to human, animal or plant life and health or to the environment.
  • Mere discovery of the scientific principle or the formulation of an abstract theory or discovery of any living thing or non-living substances occurring in nature
  • Mere discovery of any new property or mere new use for known substance or the mere use of a known process, machine or apparatus- unless results to new products or employs one new reactant.
  • Producing a new substance by mere admixtures of substances.
  • Mere arrangement / rearrangement or duplication of known devices functioning independently.
  • Method of agriculture and horticulture
  • Any process for the medicinal or surgical, curative prophylactic, diagnostic, therapeutic or other treatment of human beings, animals to render them free of disease or to increase their economic value or that of their products.
  • The biological processes for production or propagation of plants and animals in whole or any part thereof other than micro-organisms but including seeds, varieties and species (new plant varieties can be protected by the protection of plant varieties and farmers act 2001).
  • A mathematical or business method or algorithms.
  • A Computer Programme per se other than its technical application to industry or a combination with hardware.
  • Aesthetic creation including cinematography and television production.
  • Method for performing mental act or playing game.
  • Presentation of information.
  • Topography of Integrated Circuits.
  • Invention which in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known components.
  • Inventions relating to Atomic Energy.

What are the requirements for obtain a patent?
The patent laws usually require that, in order for an invention to be patentable, it must

  • be of patentable subject matter, ie a kind of subject-matter that is eligible for patent protection
  • be novel (i.e. at least some aspect of it must be new)
  • be non-obvious or involve an inventive step and
  • be useful

What is a Novelty?
Novelty is a patentability test, according to which an invention is not patentable if it was already known before the date of filing, or before the date of priority if a priority is claimed, of the patent application.

Note: Filing & Priority date – The filing or priority date of a patent application is the date the patent application was filed in one or more patent offices. However, if you have filed previous applications for your same invention (either domestic or foreign), then this date can become the date that any one of those earlier applications was filed so long as you make a proper claim of priority to those earlier applications. This date can be absolutely critical with respect to opposing a novelty or other prior art type rejection that you receive from the PTO.

What is Obviousness?
The inventive step and non-obviousness reflect a same general patentability requirement present in most patent laws, according to which an invention should be sufficiently inventive — i.e., non-obvious — in order to be patented.

What is Utility?
Utility is a patentability requirement that makes sure your claimed invention has an actual real-world use. In most cases, this will not be a concern to you as most novel inventions are useful to someone in this world. However, utility becomes an issue in the less predictable arts.

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