WHAT IS A PATENT?
A patent for an invention is the grant of
a property right to the inventor, issued by the Patent and Trademark
Office. The term of a new patent is 20 years from the date on which the
application for the patent was filed in the United States or, in special
cases, from the date an earlier related application was filed, subject to
the payment of maintenance fees. US patent grants are effective only
within the US, US territories, and US possessions.
The right conferred by the patent grant
is, in the language of the statute and of the grant itself, "the
right to exclude others from making, using, offering for sale, or
selling" the invention in the United States or "importing"
the invention into the United States. What is granted is not the right to
make, use, offer for sale, sell or import, but the right to exclude others
from making, using, offering for sale, selling or importing the invention.
WHAT CAN BE
PATENTED?
The patent law specifies the
general field of subject matter that can be patented and the conditions
under which a patent may be obtained.
In the language of the statute, any person
who "invents or discovers any new and useful process, machine,
manufacture, or composition of matter, or any new and useful improvement
thereof, may obtain a patent," subject to the conditions and
requirements of the law. The word "process" is defined by law as
a process, act or method, and primarily includes industrial or technical
processes. The term "machine" used in the statute needs no
explanation. The term "manufacture" refers to articles which are
made, and includes all manufactured articles. The term "composition
of matter" relates to chemical compositions and may include mixtures
of ingredients as well as new chemical compounds. These classes of subject
matter taken together include practically everything which is made by man
and the processes for making the products.
The Atomic Energy Act of 1954 excludes the
patenting of inventions useful solely in the utilization of special
nuclear material or atomic energy for atomic weapons.
The patent law specifies that the subject
matter must be "useful." The term "useful" in this
connection refers to the condition that the subject matter has a useful
purpose and also includes operativeness, that is, a machine which will not
operate to perform the intended purpose would not be called useful, and
therefore would not be granted a patent.
Interpretations of the statute by the
courts have defined the limits of the field of subject matter which can be
patented, thus it has been held that the laws of nature, physical
phenomena and abstract ideas are not patentable subject matter.
A patent cannot be obtained upon a mere
idea or suggestion. The patent is granted upon the new machine,
manufacture, etc., as has been said, and not upon the idea or suggestion
of the new machine. A complete description of the actual machine or other
subject matter for which a patent is sought is required.
NOVELTY AND
OTHER CONDITIONS FOR OBTAINING A PATENT
In order for an invention
to be patentable it must be new as defined in the patent law, which
provides that 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 . . ."
If the invention has been described in a
printed publication anywhere in the world, or if it has been in public use
or on sale in this country before the date that the applicant made his/her
invention, a patent cannot be obtained. If the invention has been
described in a printed publication anywhere, or has been in public use or
on sale in this country more than one year before the date on which an
application for patent is filed in this country, a patent cannot be
obtained. In this connection it is immaterial when the invention was made,
or whether the printed publication or public use was by the inventor
himself/herself or by someone else. If the inventor describes the
invention in a printed publication or uses the invention publicly, or
places it on sale, he/she must apply for a patent before one year has gone
by, otherwise any right to a patent will be lost.
Even if the subject matter sought to be
patented is not exactly shown by the prior art, and involves one or more
differences over the most nearly similar thing already known, a patent may
still be refused if the differences would be obvious. The subject matter
sought to be patented must be sufficiently different from what has been
used or described before that it may be said to be nonobvious to a person
having ordinary skill in the area of technology related to the invention.
For example, the substitution of one material for another, or changes in
size, are ordinarily not patentable.
FREQUENTLY
ASKED QUESTIONS
l. Q. What do the terms "patent
pending" and "patent applied for" mean?
A. They are used by a manufacturer or
seller of an article to inform the public that an application for patent
on that article is on file in the Patent and Trademark Office. The law
imposes a fine on those who use these terms falsely to deceive the public.
2. Q. Is there any danger that the Patent
and Trademark Office will give others information contained in my
application while it is pending?
A. No. All patent applications are
maintained in the strictest confidence until the patent is issued. After
the patent is issued, however, the Office file containing the application
and all correspondence leading up to issuance of the patent is made
available in the Files Information Unit for inspection by anyone and
copies of these files may be purchased from the Office.
3. Q. May I write to the Patent and
Trademark Office directly about my application after it is filed?
A. The Office will answer an applicant’s
inquiries as to the status of the application, and inform you whether your
application has been rejected, allowed, or is awaiting action. However, if
you have a patent attorney or agent of record in the application file the
Office will not correspond with both you and the attorney/agent concerning
the merits of your application. All comments concerning your application
should be forwarded through your attorney or agent.
4. Q. Is it necessary to go to the Patent
and Trademark Office to transact business concerning patent matters?
A. No; most business with the Office is
conducted by correspondence. Interviews regarding pending applications can
be arranged with examiners if necessary, however, and are often helpful.
5. Q. If two or more persons work together
to make an invention, to whom will the patent be granted?
A. If each had a share in the ideas
forming the invention, they are joint inventors and a patent will be
issued to them jointly on the basis of a proper patent application. If, on
the other hand, one of these persons has provided all of the ideas of the
invention, and the other has only followed instructions in making it, the
person who contributed the ideas is the sole inventor and the patent
application and patent shall be in his/her name alone.
6. Q. If one person furnishes all of the
ideas to make an invention and another employs him or furnishes the money
for building and testing the invention, should the patent application be
filed by them jointly?
A. No. The application must be signed by
the true inventor, and filed in the Patent and Trademark Office, in the
inventors name. This is the person who furnishes the ideas, not the
employer or the person who furnishes the money.
7. Q. Does the Patent and Trademark Office
control the fees charged by patent attorneys and agents for their
services?
A. No. This is a matter between you and
your patent attorney or agent in which the Office takes no part. To avoid
misunderstanding you may wish to ask for estimate charges for: (a) the
search (b) preparation of the patent application, and (c) Patent and
Trademark Office prosecution.
8. Q. Will the Patent and Trademark Office
help me to select a patent attorney or agent to make my patent search or
to prepare and prosecute my patent application?
A. No. The Office cannot make this choice
for you. However, your own friends or general attorney may help you in
making a selection from among those listed as registered practitioners on
the Office roster. Also, some bar associations operate lawyer referral
services that maintain lists of patent lawyers available to accept new
clients.
9. Q. Will the Patent and Trademark Office
advise me as to whether a certain patent promotion organization is
reliable and trustworthy?
A. No. The Office has no control over such
organizations and does not supply information about them. It is advisable,
however, to check on the reputation of invention promotion firms before
making any commitments. It is suggested that you obtain this information
from the Better Business Bureau of the city in which the organization is
located, or from the bureau of commerce and industry or bureau of consumer
affairs of the state in which the organization has its place of business.
You may also undertake to make sure that you are dealing with reliable
people by asking your own patent attorney or agent or by asking others who
may know them.
10. Q. Are there any organizations in my
area which can tell me how and where I may be able to obtain assistance in
developing and marketing my invention?
A. Yes. In your own or neighboring
communities you may inquire of such organizations as chambers of commerce,
and banks. Many communities have locally financed industrial development
organizations which can help you locate manufacturers and individuals who
might be interested in promoting your idea.
11. Q. Are there any state government
agencies that can help me in developing and marketing of my invention?
A. Yes. In nearly all states there are
state planning and development agencies or departments of commerce and
industry which seek new product and new process ideas to assist
manufacturers and communities in the state. If you do not know the names
or addresses of your state organizations you can obtain this information
by writing to the governor of your state.
12. Q. Can the Patent and Trademark Office
assist me in the developing and marketing of my patent?
A. The Office cannot act or advise
concerning the business transactions or arrangements that are involved in
the development and marketing of an invention. However, the Office will
publish, at the request of a patent owner, a notice in the Official
Gazette that the patent is available for licensing or sale. The fee for
this is $25.
Patent and Trademark
Depository Libraries
Libraries
designated as Patent and Trademark Depository Libraries (PTDLs) receive
current issues of U.S. Patents and maintain collections of earlier-issued
patents as well as trademarks published for opposition. The scope of these
collections varies from library to library, ranging from patents of only
recent years to all or most of the patents issued since 1790 and
trademarks published since 1872.
These patent and trademark collections,
which are organized in number sequence, are available for use by the
public free of charge. Each of the PTDLs, in addition, offers supplemental
reference publications of the U.S. Patent Classification System, including
the Manual of Classification, Index to the U.S. Patent Classification and
Classification Definitions, and provides technical staff assistance in
using such publications in gaining effective access to information
contained in patents and trademarks. Cassis (Classification and Search
Support Information System) and other CD-ROM products for searching patent
and trademark information are available at all PTDLs. Facilities for
making paper copies of patents and trademarks from either microfilm or
paper collections are generally provided for a fee.
Since there are variations in the scope of
patent collections among the PTDLs and in their hours of service to the
public, anyone contemplating use of the patents at a particular library is
urged to contact that library, in advance, about its collection and hours
in order to avert possible inconvenience.
Select from the list
below for the appropriate list of libraries:
General
Information about the Great Lakes Patent and Trademark Center
The Great Lakes Patent and Trademark
Center (GLPTC) was established in November, 1995 as a partnership between
the Detroit Public Library (DPL) and the U.S. Patent and Trademark Office
(U.S. PTO) to provide specialized, fee-based services. A Patent and
Trademark Depository Library since 1871, the Detroit Public Library makes
patent and trademark information available to inventors, attorneys and
other researchers. Products and services may be obtained via telephone,
mail, fax, e-mail, or in-person requests.
The Center's extensive holdings include
all U.S. patents on microfilm, as well as the reference tools needed to
perform a patent search. Records of federally registered trademarks and
information on the patent and trademark application process are also
available. Researchers are not required to reveal any information about
their invention. Librarians will instruct researchers on patent and
trademark searching, but are not permitted to provide legal advice or
opinions.
Search for an existing
patent at the USPTO Web Patent Database
