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What is a Patent?

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 rules govern patents. The U.S. Patent and Trademark Office 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 machines, chemicals, and processes. Design patents are granted to protect the unique appearance or design of manufactured objects, such as the surface ornamentation or 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 means the plant is reproduced by means other than from seeds, such as by grafting or rooting of cuttings.

For an invention to qualify for a patent, it must be both "novel" and "nonobvious." An invention is novel if it is different from other similar inventions in one or more of its parts. It also must not have been publicly used, sold, or patented by another inventor within a year of 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.

An inventor applying for a utility patent also must prove that the invention is useful. The invention must have some beneficial use and must be operable. A machine that will not operate to perform its intended purpose would not be called useful, and therefore would not be granted a patent.

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 of one of these. A process is a method of treating material to produce a specific physical change in the character or quality of the material, generally an industrial or technical process. A machine is a device that uses energy to get work done. The term manufacture refers to a process in which an article is made by the art or industry of people. A composition of matter may include a mixture of ingredients or a new chemical compound. An improvement is any addition to or alteration of a known 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;
  • furniture design;
  • jewelry;
  • fabrics and fabric design; and
  • 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 figured out the concrete means of implementing his or her ideas in order to get a patent. A patent also will not be granted for an invention with no legal purpose or for an unsafe drug.

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 his or her 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 U.S. Patent and Trademark Office, where it is reviewed by a patent examiner. 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 PTO. Before a person may be licensed as a patent attorney or patent agent, she must have a degree in certain technical or scientific fields.

Utility and plant patents last for twenty years from the application date; design patents last for fourteen years. If the owner of a utility patent does not pay maintenance fees, the patent will expire earlier. 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 his or her patented invention without permission, he or she may bring a lawsuit against the infringer. If the court agrees, it may award the patent holder costs, attorney's fees, damages in an amount equal to a reasonable royalty, and an injunction (an order prohibiting another person from infringing the patent). An action for infringement can be time-consuming and costly, so infringement cases often are settled.

Next Steps
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how to best protect your business' intellectual property.
(e.g., Chicago, IL or 60611)

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