Brief Description of Patents and Patenting Process
The Constitution of the United States gives Congress the power to enact laws relating to patents, in Article I, Section 8, which reads “Congress shall have 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.” Under this power, Congress from time to time has enacted various laws relating to patents. The first patent law was enacted in 1790. The law now in effect is a general revision which was enacted 19 July 1952, and which came into effect 1 January 1953. It is codified in Title 35, United States Code.
This article is prepared to answer questions regarding one form of intellectual property protection through the grant of a patent, which is explained in more detail below. Intellectual Property, or IP, is the group of legal rights to things people create or invent. Intellectual property rights typically include patent, copyright, trademark and trade secret rights. Sometimes patents, copyrights and trademarks can be confused with each other. Although there may be some resemblance in the rights of these three kinds of intellectual property, they are different and serve different purposes. The copyright protects the writings of an author against copying. Literary, dramatic, musical and artistic works are included within the protection of the copyright law, which in some instances also confers performing and recording rights. The copyright protects the form of expression rather than the subject matter of the writing. Copyrights are registered in the Copyright Office in the Library of Congress. A trademark or servicemark relates to any word, name, symbol or device which is used in trade with goods or services to indicate the source or origin of the goods or services and to distinguish them from the goods or services of others. Trademark rights may be used to prevent others from using a confusingly similar mark but not to prevent others from making the same goods of from selling them under a nonconfusing mark. Similar rights maybe acquired in marks used in sale or advertising of services (as service marks). Trademarks and service marks which are used in interstate or foreign commerce may be registered in the United States Patent and Trademark Office (USPTO).
Before entering into a discussion of patents, patenting process and costs associated with obtaining a patent, it may be helpful to recognize that the preparation of an application for patent and the conducting of the proceedings in the United States Patent and Trademark Office to obtain the patent is an undertaking requiring the knowledge of patent law and rules and Patent and Trademark Office practice and procedures, as well as knowledge of scientific or technical maters involved in the particular invention. You may prepare your own (pro se) applications and file them in the Patent and Trademark Office and conduct the proceedings pro se, but unless you are familiar with these matters or study them in detail, you may get into considerable difficulty. Most inventors employ the services of registered patent attorneys or patent agents. The law gives the Patent and Trademark Office the power to make rules and regulations governing the conduct and recognition of patent attorneys and patent agents to practice before the Patent and Trademark Office. Persons who are not recognized by the Patent and Trademark Office for this practice are not permitted by law to represent inventors before the Patent and Trademark Office. The Patent and Trademark Office maintains a register of patent attorneys and patent agents who are admitted to this register after having passed a patent bar examination. Both patent attorneys and patent agents are qualified in the preparation of an application for a patent and in prosecution of the application in the Patent and Trademark Office, although patent agents cannot conduct patent litigation in the courts or perform various services which the local jurisdiction may consider as practicing law.
This exposé describes first the nature of a patent right, followed by the specifics of the three phase process of obtaining a patent: 1) prior art search; 2) drafting the patent application, and 3) prosecution of the patent application. After reading this, if you wish to consider this agency representing you, please call so that we can discuss whether there are any conflicts that would prohibit an attorney-client relationship, and whether we can reach a mutually agreeable arrangement.
What is a Patent?
A patent is a right granted by the United States government giving the patent owner the right to exclude others from making, using and selling a patented invention for a limited period of time. Patent applications filed before June 8, 1995 expire 17 years from the issue date. Applications filed after June 8, 1995 expire 20 years from the date of filing the application. Several other changes to the patent law occurred on this date, and thus, you should consult a patent attorney/agent for more specific information in this regard.
The term “exclude” is important, because a patent does not give an inventor an absolute right to make use or sell, but rather, allows an inventor to prohibit others from making using or selling the patented invention. This is referred to as a “negative right” in patent parlance.
There are three types of patents: (1) utility patents; (2) design patents; and (3) plant/biological patents. Utility patents cover a broad range of subjects including processes, machines, articles of manufacture, compositions of matter (e.g., chemical compounds, mechanical or physical mixtures and alloys), and improvements to any of these subjects.
Design patents are issued for any new, original and ornamental designs. Among the designs subject to design patent protection are apparel and other haberdashery, including household articles, furnishings, weaving, lamps, packages and containers, games and toys, and jewelry. Design patent applications are often used when an applicant wants to use the notice “patent pending” on all products or advertisements.
Finally, plant patents are issued for any new variety of asexually reproduced plants. Unless you specialize in asexually reproducible plants, this is unlikely to apply to your invention.
Reasons for obtaining patent protection vary from inventor to inventor. Factors such as marketing value, exclusive use of the invention, commercial licensing potential and the ability to finance the invention all influence the decision to obtain a patent. There are, however, disadvantages in obtaining a patent including expense, availability of manufacturing expertise and capacity, prior patent availability and potential infringement challenges.
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