Patent law grants an inventor the right to exclude others from making, using or selling his invention for a limited time. The US Constitution gives Congress authority to pass laws to “secure for limited times to inventors the exclusive right to their discoveries.”
성범죄변호사Generally, machines, processes and manufactured items are patentable. However, business methods and printed matter have been traditionally unpatentable.
Patentable Subject Matter
Patents protect new inventions and encourage businesses and individuals to invest in research. They give the inventor a right to exclude others from making, using or selling the invention and to receive compensation for their work. They also have the property rights associated with personal property, meaning that they can be sold or transferred to heirs.
The law defines patentable subject matter as “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” This broadly covers anything that can be conceived of in human imagination, although there are some exceptions to this rule. For example, natural living cells are not patentable under the current law, but synthetically manufactured bacteria are.
There is ongoing debate about whether business methods or printed matter are patentable, but they have not yet been ruled out. A recent case involving a software program that scanned documents and then formatted them for computer use was deemed patentable, although the court found that the process did not create or transform anything tangible. The Court cited a need to avoid allowing a “monopoly tool that does not create or transform something tangible” to inhibit future innovation based on that tool.
Filing a Patent Application
The process for obtaining patents varies from country to country, according to national laws and international treaties. However, in general, the inventor first files a regular patent application (RPA) with the Patent Office, and then, if the RPA is accepted for examination, the inventor ultimately receives a patent.
To be patentable, an invention must meet three requirements: novelty, non-obviousness and usefulness/functionality. To satisfy the novelty requirement, an invention must be different from anything that has been previously disclosed. The invention must also be “non-obvious” to one of ordinary skill in the field of the invention, as stated by 35 U.S.C. SS103, meaning that the invention must be new and not simply a development of prior art.
The application must include a detailed description of the invention, including a written explanation and drawing of it. This detailed disclosure is called the “specification.” In addition, the specification must include a declaration that the inventor disclosed the best mode of practicing the invention, as specified by 35 U.S.C. 112. This best mode requirement is a key element in patentability, because it ensures that others can practice the invention as intended by the inventor.
Examining a Patent Application
A patent examiner reviews a patent application to make sure it meets the requirements of patentability. The examiner looks at the prior art, checks for compliance with formal requirements such as written description and enablement, and evaluates the utility of the invention.
In evaluating utility, the examiner puts himself or herself in the shoes of a person of ordinary skill in the field. The examiner must be convinced that the invention is useful and not obvious (see 35 U.S.C. 103) at the time of invention or before the patent application’s effective filing date. This is the basic test that determines whether or not a patent is granted.
If the patent examiner concludes that the invention is new and involves an inventive step, is susceptible of industrial application and complies with other formal requirements, the patent will be granted. If the examiner finds that it does not, or if he or she believes that the claims in the application are broad and do not adequately describe the invention, they may be narrowed by a Restriction Requirement.
Granting a Patent
The holder of a patent has the right to exclude others from making, using, offering for sale, selling or importing the invention. Patents are a valuable form of intellectual property and have long played an important role in encouraging inventors and companies to bring new products to market.
Patent applications contain the essential details of an invention. They begin with an opening statement describing the problem the invention addresses, followed by a description of the solution that includes the inventive step. Patents also include numbered claims that define the legal limits of the monopoly granted by the grant.
Inventors must be able to describe their invention in enough detail that someone skilled in the art could make it. This is known as enablement and is a requirement of patent law. In addition, patent applicants must disclose the best mode of practicing their invention. Failure to meet these requirements can result in a denial of the patent. Patents are owned by the inventors or their successors in interest and may be assigned or licensed. In most countries, maintaining a patent requires payment of renewal fees on a yearly basis.
Enforcing a Patent
Once a patent is issued, it confers upon the holder the right to exclude others from making, using, selling or offering for sale the invention covered by the claims in the patented application. This means that if you discover that someone is making, selling or offering for sale your invention without your permission, the first step in enforcing a patent is to identify whether the alleged infringement falls within the scope of one of your claims.
If it does, the next step is to notify the infringer of the infringement and send them a cease and desist letter. Alternatively, a well-seasoned patent attorney can help you perform an in-depth analysis of the claims and determine the most appropriate legal response, including filing a lawsuit in federal court.
Because enforcing a patent is a different legal issue from applying for and prosecuting the patent, many patent infringement suits never get filed. In many cases, the infringement is resolved through a licensing agreement. A qualified business attorney can assist you in identifying the most appropriate approach to take.