Patent law was enacted by Congress under the power given by Article I of the Constitution “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.” A patent gives an inventor the exclusive right to make, use, and sell an invention for 20 years. It protects a process, product, invention, machine, or the improvement of any of these. Note that a patent gives the inventor the right to exclude others from making, selling, or using the invention.
What May Be Patented
A patent is defined as a process, art (as in "state of the art") or method, and includes a new use of known process, machine, manufacture, composition of matter, or material. A machine is a particular apparatus for achieving a certain result or carrying out a distinct process (i.e., printing press).
A “manufacture” is an article or a product such as a television. A composition of matter is a new arrangement of elements so that the resulting compound, such as a metal alloy, is not found in nature. In addition, genetically engineered living organisms may be patented. Improvements are an alteration of a process, machine, manufacture, or composition of matter may also be patented. Finally, new and original ornamental designs for articles of manufacture are patentable (i.e., the shape of a bottle), but works of art are not patentable and therefore must seek protection from copyright law.
What May Not Be Patented
Laws of nature (e.g., gravity), natural phenomena (e.g., copper), and abstract ideas cannot be patented. The rationale here is that these items are not invented; they merely exist. However, a process created to understand or extract these items could be patentable.
For many years, software programs were deemed not patentable because the code incorporated automation of manual process or mathematical equations, both of which could not be patented. However, in 1998, the Supreme Court held that patents could be obtained for a process that incorporated a computer program if the process itself was patentable.
Business processes can also be patented. For example, Amazon obtained a patent for its "one-click" ordering system, a method of processing credit-card orders securely. However, this patent could not keep Amazon from shutting down Barnesandnoble.com's Express one-click ordering system.
Basic Requirement of a Patent
In order for a patent to be issued, several requirements must be met. We'll focus on the following three:
- The invention must be useful. This has been interpreted fairly broadly in the past. Simply ask, would this invention be useful to somebody? Anybody? It really means that the invention has a useful purpose.
- The invention must be novel/new. The law states that an invention is not patentable if it's already been patented, described in a printed publication, or was in public use prior to the patent application.
- The invention must not be obvious. To determine if an invention is obvious, the USPTO looks at the differences between the invention and prior inventions (known as prior art), the level of ordinary skill in the field of the inventor, and what someone in the field would consider obvious.
Procedures for Researching and Obtaining a Patent
The first step is to determine which type of patent application is appropriate. The following categories are recognized under patent law:
- Utility Patents. These are the most common types of patents in the U.S. A utility patent may be granted for a useful innovative item or process, or an improvement to an existing item or process that is also useful. Utility patents typically involve a machine, an article of manufacture, and a composition of matter.
- Design Patents. Design patents protect the appearance of a product. It consists of a visual ornamental characteristic rather than functional characteristics. For example, Coke received a design patent for the unique way that the glass bottle was shaped. That design was ornamental because it involved wavy designs in the glass that were not functional (i.e., those wavy lines didn't make it a better drinking bottle...they just looked cool.
Remember that utility patents protect the way an invention is used and works whereas a design patent protects the way an article looks. Note that a design patent only grants protection for 15 years.
You can review and apply for patents using the Patent and Trademark Office's website, found at https://www.uspto.gov/
Please review this presentation, prepared by the USPTO on how to search patents. After watching, find a patent that interests you.
An interesting phenomenon of late has been the rise (and likely recent fall) of so-called patent trolls. Simply put, an individual or business may purchase an obscure patent for a minimal amount and then use that patent to demand money from profitable companies that may (or may not) be infringing on the troll's newly-acquired patent. To see how this process has been abused, read this article about a recent patent troll.