Basis for Protection of Patents and Copyright in the U.S. US Constitution:
Article 1, Section 8, Clause 8 –“Congress shall have the 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.”
FIVE FACTS TO UNDERSTAND ABOUT PATENTS
- The right to a Patent is as old as the US itself;
- Patents are issued by the USPTO (US patent and trademark office)
- There are basically three types of patents, utility, design and plant patents;
- Avoid online scams to “help” you file your patent application;
- Patent applications are complex and take a lot of time and a knowledgeable patent attorney is well worth the investment.
WHAT IS A PATENT
Patents are basically licenses issued by the United States Patent and Trademark Office that protect inventions and new discoveries. There are basically three types of patents: utility patents, design patents, and plant patents. The statute states that , any person who “invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent,” subject to the conditions and requirements of the law. The word “process” is defined by law as a process, act, or method, and primarily includes industrial or technical processes. The term “machine” used in the statute means a mechanical device. The term “manufacture” refers to articles that 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 that is made by man and the processes for making the products. Over the last 240 years plus, many interpretations of the statute have been rendered by the courts that have defined the limits of the field of subject matter that can be patented. The courts ruled that “the laws of nature, physical phenomena, and abstract ideas are not patentable subject matter.” A patent cannot be obtained upon an idea. It is necessary to provide a complete and detailed description of the actual machine or other subject matter for which a patent is sought is required.
THE THREE TYPES OF PATENTS
There are three basic types of patents and each type has its own eligibility requirements and protects a specific type of invention or discovery inventions cross over and need two patents one for design and one for function. The following are the three basic types of patents:
A utility patent is the most common type of patent sought to protect inventions. This type of patent protects processes, machines , compositions of matter like formulas, and manufacturing processes. A utility patent can also be obtained for new and useful improvements to patents that already exist for machines, compositions of matter and manufactures. Processes refer to any acts or methods of doing something, usually concerning industrial or technical processes. Compositions of matter are chemical compositions, like a mixture of ingredients or new chemical compounds. Machines include things that are generally defined as a machine, such as a blender, while manufactures are defined as goods that are or made.
To obtain a design patent, a design is defined as the “surface ornamentation” of an object, which can include the shape or configuration of an object. In order to be able to obtain design patent protection, “the design must be inseparable from the object.” Although the object and its design must be inseparable, a design patent will only protect the object’s look aka design, and not the function. To protect the functional component of an object, an inventor must also file for a utility patent.
A plant patent is just as it sounds and can be obtained to protect new and different varieties of plants. The requirements to obtain this type of patent are as follows:
- The plant cannot be a tuber propagated plant ;
- the plant is not found in an uncultivated state;
- The plant can be reproduced by grafting or cutting the plant.
How to Obtain Patent Protection
Patent protection is obtained by filing an application with the United States Patent and Trademark Office (USPTO) for any of these three patent types. There are two types of patents, a provisional and non-provisional and both patent applications are available to patent-seekers. A provisional patent application protects your idea for a year while a permanent application is being finalized and it gives the applicant more time to determine the details of the invention while still protecting the invention or discovery from being patented by someone else. An inventor who files a provisional patent application has one year from the date of filing to file the appropriate non-provisional application.
The process of obtaining a patent starts with the non-provisional patent application being sent to the USPTO to determine if an invention or discovery is eligible to receive patent protection. The information that is required to be included in the patent application is contingent on the type of patent that is being requested. The non-provisional patent application only needs to include a description and claim of the invention or discovery, drawings, an oath or declaration, and the appropriate fees. As per the Patent Cooperation Treaty (PCT), a person can also file an international patent application at the same time to obtain international protection in certain countries. It is important to point out that a public disclosure (e.g., publication, public use, offer for sale) that is more than one year before the provisional application is filed with the USPTO would prevent the patenting in the United States. Please remember that a “publication, use, sale, or other activity” only has to be made available to the public to qualify as a public disclosure meaning if you publicize your invention you may be barred from obtaining a patent.
Fees are subject to change yearly. To locate the current fees, see current fees (37 CFR 1.16(d)) at www.uspto.gov or call the USPTO Contact Center (UCC) Monday to Friday (except federal holidays) at 800-786-9199 for fee information. Payment by check or money order must be made payable to “Director of the U.S. Patent and Trademark Office.” Or paid online.
HOW TO FILE YOUR PATENT APPLICATION
The provisional application papers (written description and drawings), filing fee and cover sheet can be filed electronically using EFS-Web or filed by mail with the USPTO. Your application will be processed faster if you file online. To file online:
“Electronically Using EFS-Web: The provisional application can be filed electronically only if EFS-Web is used. EFS-Web allows patent applications, including provisional applications, to be filed securely via the Internet. Applicants prepare documents in Portable Document Format (PDF), attach the documents, validate that the PDF documents will be compatible with USPTO internal automated information systems, submit the documents, and pay fees with real-time payment processing. When fillable EFS-Web forms are used, the data entered into the forms is automatically loaded into USPTO information systems. Further information on EFS-Web is available at http://www.uspto.gov/patents/process/file/efs/guidance.”
To File By Mail: The provisional application and filing fee can be mailed to:
Commissioner for Patents
P.O. Box 1450
Alexandria, VA 22313-1450
Filing for a patent is a complex process and there are numerous resources online to help new inventors. However, avoid online scams offering to help for a low fee. Feel free to call the offices of TheOneLawyer.com and speak directly to attorney Laura Marie Payne-Hunt, Esq. for a referral to a reputable attorney. If you are doing it yourself, take advantage of books ( I recommend the Nolo series) and free webinars.
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