What Is A Patent?
A patent for an invention is a grant of a property right by the Government to the inventor (or his heirs or assigns), acting through the Patent and Trademark Office.
WHAT IS A PATENT?
A patent for an invention is a grant of a property right by the Government to the inventor (or his heirs or assigns),acting through the Patent and Trademark Office. The term of the patent is 17 years from the date the patent is granted, subject to the payment of maintenance fees.
The right conferred by the patent grant extends throughout the United States and its territories and 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, or selling" the invention.
What is granted is not the right to make, use, or sell, but the right to exclude others from making, using, or selling the invention.
Some persons occasionally confuse patents, copyrights, and
trademarks. Although there may be some resemblance in the
rights of these three kinds of intellectual property, they are different and serve different purposes.
A copyright protects the writings of an author against
copying. Literary, dramatic, musical and artistic works are
included within the protection of the copyright law, which in some instances also confers performing and recording rights. The copyright goes to the form of expression rather than to the subject matter of the writing. A description of a machine could be copyrighted as a writing, but this would only prevent others from copying the description; it would not prevent others from writing a description of their own or from making and using the machine. Copyrights are registered in the Copyright Office in the Library of Congress. Information concerning copyrights maybe obtained from the
Register of Copyrights, Library of Congress, Washington, D.C. 20559. (Telephone 202/479-0700)
A trademark relates to any word, name, symbol or device which is used in trade with goods to indicate the source or origin of the goods and to distinguish them from the goods of others. Trademark rights may be used to prevent others from using a confusingly similar mark but not to prevent others from making the same goods or from selling them under a non-confusing mark. Similar rights may be acquired in marks used in the sale or advertising of services (service marks). Trademarks and service marks which are used in interstate or foreign commerce may be registered in the Patent and Trademark Office. The procedure relating to the registration of trademarks and some general information concerning trademarks is given in a
pamphlet called Basic Facts About Trademarks.
The Constitution of the United States gives Congress the power to enact laws relating to patents. in Article I, section 8, which reads "Congress shall have power... 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." Under this power Congress has from time to time enacted various laws relating to patents. The first patent law was enacted in 1790. The law now in effect
is a general revision which was enacted July 19, 1952, and which came into effect January 1, 1953. It is codified in Title 35, United States Code.
The patent law specifies the subject matter for which a patent may be obtained and the conditions for patentability. The law establishes the Patent and Trademark Office for administering the law relating to the granting of patents, and contains various other provisions relating to patents.
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 improvements thereof, may obtain a patent," subject to the conditions and requirements of the law. By the word "process" is meant a process or method, and new processes, primarily industrial or technical processes, may be patented. 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 process for making them.
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 methods of doing business and printed matter cannot be patented.
In the case of mixtures of ingredients, such as medicines, a patent cannot be granted unless there is more to the mixture than the effect of its components. (So called patent medicines are ordinarily not patented, the phrase "patent medicine" in this connection does not have the meaning that the medicine is patented.) 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 sought to be patented 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 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 valid 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 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 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 so that it may be said to be unobvious 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.