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Understanding Patents

Updated on November 7, 2009

A patent is a government guarantee to the inventor of a product or process that allows the person exclusive use and exploitation of it, a patent is issued for only a specified period, which may vary from one country to another. Although there are many independent inventors most patents are held by large corporations, which are able to finance expensive production operations.

In the United States, the right to a limited period of ownership granted by the government to the inventor or discoverer of something new and useful is a patent. The granting of patents is provided for by the U.S. Constitution in Article I, Section 8, a part of which empowers Congress to promote science and useful arts by giving inventors a period of exclusive right to their discoveries. Patents are granted for a fee through the U.S. Patent Office, a part of the U.S. Department of Commerce in Washington, D.C. Under present law a regular patentee, or holder of a patent, has the right to exclude others from making, using, or selling his invention for 20 years. For patent protection in a country other than the United States an inventor must comply with the patent laws of that country.

In legal terms a U.S. patent may he granted for any new and useful process, machine, manufacture, or composition of matter. A process is a method or a systematic procedure for doing or producing something. A machine is any device or instrument that is used to produce another article. A manufacture is any article, except a machine, that is made by man. A composition of matter is a substance containing two or more ingredients. An invention meets the requirement of newness as long as any previous use of it by the inventor or printed description of it has not taken place more than a year before the patent is applied for. The requirement of usefulness means that the invention must be of real use to the public.

Designs May Also Be Patented

A design is a pattern of lines or images that give a new and distinctive appearance to an article, such as a piece of furniture or a car. The term of a design patent differs from the usual 20-year monopoly. The fee varies according to the length of the term.

Plant patents are granted for the creation of new botanical varieties. Plants grown for flowers or fruit may be patented.

Obtaining a Patent

Anyone may apply to the U.S. Patent Office for a patent. If two or more persons have worked together on an invention, they may apply jointly. Because patent applications are technical, most applicants seek the help of patent attorneys or agents who are registered to practice before the U.S. Patent Office. The Patent Office publishes a list of such attorneys and agents, and their names appear in the classified section of the telephone directory of most large cities.

Persons desiring patents usually do preliminary research and must submit proper applications. The Patent Office examines the applications and grants patents for those it approves.

Preparation

Usually the applicant or his agent attempts to make a preliminary estimate as to the newness and usefulness of his work before sending in his application for a patent. The Patent Office has many facilities for such a preliminary search. In the office's scientific library are more than 200,000 scientific and technical books and periodicals in various languages. The applicant's work can be compared with copies of previously issued patents from among the more than 7,500,000 foreign patents in the scientific library and the more than 3,000,000 U.S. patents in an adjacent public search room. In the record room are further patent copies, related records, and a complete set of the office's weekly Official Gazette. In the case of U.S. patents and many foreign patents the copies are classified by field of invention and in numerical order. As a guide to the searcher, the office has microfilm lists of patents and a manual of classification. An applicant who cannot easily travel to Washington may order patent copies and records from the Patent Office or examine copies available in libraries in a number of states.

Application

The application for a patent must be made in writing. It should begin with a petition requesting a patent. This petition is followed by a specification, or description, detailing fully and exactly how the applicant's invention is made and used. Drawings with further descriptions should be included. Models, once required, are now accepted only if called for by the Patent Office. If the applicant is attempting to improve an existing invention, the specification must point out those parts that he believes he has improved. The specification must conclude by pointing out and claiming the subject matter that the applicant records as his invention. Finally, the applicant must assert by oath or declaration that he believes himself to be the original inventor of what he seeks to patent.

If two or more persons apply separately for patents on substantially the same invention, the Patent Office institutes a proceeding, known as an interference, to determine which person first conceived and built the invention. If his application is proper, it will be examined first. To establish evidence of priority, inventors often keep notes on their work in a journal.

Examination

A proper application received by the Patent Office is assigned to an examining group, on the basis of the class of invention involved, to deter. All U.S. patents are available for reference use in bound volumes in the Public Search Room of the U.S. Patent Office.

The examination consists of a study of the applicant's specification and a search through prior literature, records, and patent copies that may have a bearing on the application. If the application is approved, the applicant is notified that he will be granted a patent. If the application is rejected, the applicant may within six months request a reexamination. If the results are again negative, he may appeal his case to the Patent Office's Board of Appeals. If that appeal also fails, the inventor may appeal to the U.S. Court of Customs and Patent Appeals or he may file a civil action against the Commissioner of Patents in the federal district court in the District of Columbia.

Grant and Use

The grant of a patent on an approved application, conferred in the name of the United States, is prepared and delivered upon payment of the basic final fee. The grant bears the Patent Office seal and the signature of the Commissioner of Patents.

The time between the filing of an application and the issuing of a patent usually is from two to three years. The patentee then has a 20-year monopoly of his invention. He may make and sell it or give others the right to make and sell it, in return for royalties, or money payments. The patentee must at all times operate within the limits imposed by state and federal laws. He may be bound by state laws that prohibit the sale of certain kinds of articles. He is also bound by federal antitrust laws that forbid certain monopolistic trade and price practices.

The U.S. government may make or use any patented invention without the consent of the inventor, although it must pay the inventor if it does so. Anyone else who attempts to do the same thing is called an infringer. The person who has been granted the patent may bring suit against an infringer, stop him from further use by a court order, and possibly be awarded damages by the court.

Patent Marking

Each patent bears a number. When patented items are offered for sale, they should be marked "patent" followed by the appropriate number. This marking informs everyone that the inventor is protected by the government and that no one else is entitled to copy, make or sell the product. If a product is not patented, it is illegal and punishable by law for a manufacturer or seller to put a patent mark on it. However, when a patent has not yet been granted, articles may be marked "patent applied for" or "patent pending". Such markings have no legal significance, because only the issuance of the patent affords protection for an article.

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