A patent is a limited-time monopoly for a new invention or discovery. Congress is empowered to make laws to grant patents to inventors under Article I, section 8 of the U.S. Constitution. The Patent Act governs the granting of patents and the workings of the United States Patent and Trademark Office (USPTO). Those who are able to secure a patent have the right to exclude others from making, using, or selling their patented inventions.

Aspects of patent law include:

  • Types of Patents
  • Patent Search
  • Applying for a Patent
  • Licensing
  • Patent Prosecution
  • Patent Appeals
  • Infringement
  • Enforcement

There are three types of patents: utility patents, design patents, and plant patents. The most frequently sought-after type of patent is the utility patent, which protects new, useful processes, machines, manufactures, compositions, or improvements. A design patent can be granted to someone who invents a new design for a manufactured item. A plant patent can be granted to anybody who invents or discovers and asexually reproduces a new kind of plant.

How to Obtain a Patent

Those who want to obtain a patent submit applications to the USPTO, which reviews applications to determine whether a particular invention is patentable. Under Section 101 of the U.S. Patent Act, an invention may be patentable if it is statutory, new, useful, and nonobvious. Certain items that have been deemed to be not statutory are data structures, nonfunctional descriptive material like literature or music, and electromagnetic signals. The patent application must adequately describe the invention, and the inventor must claim it in clear and definite terms.

Whether an invention is novel requires a search for prior art, which is the body of knowledge involving similar and earlier products or processes, and an analysis of whether the public knew of the invention before the invention was invented, whether it was described in a publication more than a year before the filing date, and whether it was used publicly or sold to the public more than a year before the filing date. In general, there is just a one-year period after disclosing the invention to someone without a confidentiality agreement during which “novelty” will be found. It is important to be diligent about filing a patent application.

Usefulness means not only that there is a useful purpose to the invention, but also that the invention is operable. A composition that does not operate to serve its purpose will not meet this requirement.

An invention must be not only novel, but must also be a nonobvious improvement over prior art. The invention will be compared to the prior art in order to figure out whether a person who had ordinary skill with the technology used in the invention would have found it to be obvious.

A patent office examiner must review previous patents to determine which patents are similar to the invention that is the subject of the patent application. The examiner will look at whether the features of the invention can be found in a single patent to determine novelty, and in two prior patents to determine nonobviousness. In general, simply substituting one material for another in an invention or changing its size or appearance will not be sufficient to obtain a patent.