TM
Inventor
Tips
What
is a Patent?
Patents
give the owner the right to exclude other parties
from: making, using, selling, offering to sell, or
importing an invention. Exclusive rights in the invention
begin when the patent is granted by the U.S. Patent
and Trademark Office, or earlier in some cases, and
expire 20 years after the application for the patent
was filed with the Office.
NOTE: A patent only confers the right to exclude
others from practicing your invention. The patent
does not necessarily give you the right to practice
your invention either. You may infringe on other patents
while practicing your own patent.
Inventions
that can be patented include products processes, business
methods, software, genes, plants, engineered organisms,
and anything else under the sun made by man.
The
owner of a patent may be the inventor, the inventor's
employer, or someone who has purchased the rights
from the inventor or the employer. Most patents are
owned by companies, inventors, or universities. Owners
may manufacture an invention themselves, or they may
license another party to manufacture and pay the owner
a royalty.
Incentives
for New Technology
Patent
laws, along with copyright laws, were among the earliest
laws passed by the First Congress in 1790. Patents
and copyrights are authorized in the U.S. Constitution
to "promote the progress of science and useful
arts." You literally have a constitutional right
to patent your ideas. The patent system gives incentives
to inventors and their employers to create new technology
and to invest in commercializing technology. Full
disclosure of how to make and use the best mode of
practicing the invention is exchanged for a government
sanctioned monopoly on the claimed invention for 20
years. Policy makers have generally agreed that the
American tradition of strong patent laws has contributed
to making this country the world's technological leader,
a position it has held for more than a century.
Dissemination
of Technological Information
A
patent applicant must give the Patent and Trademark
Office a written description of the invention that
is adequate to enable a person skilled in the field
to make and use the invention. Also the description
must disclose the best mode contemplated by the inventors
for practicing the invention. This description is
called the "specification."
When
the Office grants a patent, the specification is published
and disseminated widely to inventors and industry
to spur additional research and innovation. The Patent
and Trademark Office is one of the world's largest
libraries of technological information, with more
than 25 million freely searchable documents.
Obtaining
U.S. Patents
In
order to be eligible for a patent, an invention must
be "new", and it must be sufficiently different
so that it is not "obvious" to a person
skilled in the field. An invention is not new if it
has already been invented or disclosed by someone
else, or if it has been made public or offered for
sale by the inventors more than one year before the
patent application is filed. This one year period
in U.S. patent law is called the "grace period,"
and is generally unavailable when filing your patent
outside the U.S.
The
U.S. Patent and Trademark Office has a staff of scientists
and engineers -- patent examiners --who examine each
application to determine whether the invention meets
the criteria for obtaining a patent. On the average
it takes about three years to obtain a patent after
the application is filed. Most applicants hire a patent
attorney to file their application and obtain the
patent. Patents include "claims" that define
the scope of coverage of the patent. The U.S. grants
more than 100,000 patents a year.
Obtaining
Patents Abroad
A
U.S. patent gives exclusive rights only within the
United States. Treaties also give Americans the right
to apply for patents in other countries, and give
nationals of those countries the right to apply here,
but patents must be obtained separately in each country,
for the most part. Some regional rights may be possible
in Europe and Eurasia.
Foreign
patent laws differ from U.S. law. Most countries do
not afford the one year grace period of U.S. Law,
which means that a foreign patent cannot be obtained
if the invention was made public anywhere in the world
even one day before the first patent application is
filed. It is very expensive to obtain patents in foreign
countries, but efforts are being made to reduce the
cost of foreign patenting.
Costs
associated with the foreign filing of a patent can
be delayed for 20-30 months under the Patent Cooperation
Treaty (PCT). A PCT application can protect your rights
in most countries on earth if you file in those countries
before the 20-30 moth period expires.
Enforcing
Patent Rights
Patent
owners can sue in court to stop unauthorized parties
from practicing the patented invention. The patent
law confers the right to exclude others from practicing
your invention. Unauthorized parties are "infringers."
A successful lawsuit also may give the patent owner
monetary damages and could include treble damages
plus your attorney fees.
A
suit cannot be filed until the patent has been granted
by the Patent and Trademark Office. Products that
are covered by a patent often should be marked with
the patent number. Patents are numbered consecutively;
more than 5 million have been granted. When a patent
application has been filed, products often are marked
"PATENT PENDING" or "PATENT APPLIED
FOR" to warn competitors that a patent may be
granted, but rights do not begin until a patent is
granted and rights are usually not retroactive, but
can be retroactive to the date the application is
published.
Other
Information
Inventors
should obtain advice from knowledgeable sources before
spending money on marketing or patenting their inventions.
Novices should be wary of promoters who claim to have
the ability to sell or license inventions to industry
on behalf of inventors, especially if the promoter
wants to be paid in advance.
In
addition to patents for inventions, which are sometimes
called utility patents, patents can be obtained for
ornamental designs of manufactured articles and for
living plant varieties.
Intellectual
Property: Products of the Mind
"Intellectual
property" is a term used to describe intangible
creations of the human intellect that are protected
by law. Patents are intellectual property rights.
Other
intellectual property rights include copyrights, trademarks,
and trade secrets.
COPYRIGHTS
protect literary and artistic works, such as books,
papers, photographs, art, music, movies, recordings,
and software. Copyrighted works, sometimes identified
by the symbol ©, may be registered with the U.S.
Copyright Office in the Library of Congress.
TRADEMARKS,
also called brand names, are words, designs or other
symbols that identify and distinguish products and
services. An ® denotes a trademark that is registered
with the U.S. Patent and Trademark Office, while TM
denotes a trademark that may not be registered.
Invention
Promotion Firms
If
you are involved with one, or thinking about working
with an invention promotion firm, please take a few
minutes to read through the Federal
Trade Commission warnings on this topic.
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