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A
patent is a proprietary right granted by the Federal government to an
inventor who files a patent application with
the United States
Patent Office. There are three types of patents available in
the United States: (1) a utility
patent, which covers the functional aspects of products and
processes; (2) a design
patent, which covers the ornamental design of useful
objects; and (3) a plant patent, which covers a new variety of living
plant. Each type of patent confers "the right to exclude others
from making, using, offering for sale, or selling" the invention
in the United States or importing the invention into the United
States. See 35
U.S.C. 271(a). It is important to note, however, that patents
do not protect ideas, but rather protect inventions and
methods that exhibit patentable subject matter. Today there are few
questions with respect to patentable subject matter. From time to
time the United States Patent Office does attempt to breathe new life
into rejections for want of patentable subject matter, but ultimately
the legislative history and the guidance of the Supreme Court is
clear and anything made as the result of human intervention is patentable.
The United States Constitution grants
to the Congress the power to grant patents; this power residing in
the Congress is found in Article I, Section 8, Clause 8. Unlike most
of the enumerated powers granted to Congress in the Constitution, the
Intellectual Property Clause is a qualified grant of power, which
does limit Congressional discretion in significant ways. In this
regard, Congress may not simply create patent terms of unlimited
duration, nor may Congress do away with the utility, novelty and non-obviousness
requirements, nor may Congress authorize the issuance of a patent
when the ramifications of such issuance are to remove an existing
invention from the public domain, nor may Congress restrict in any
way the free access to materials already available to the public.
Rather, the Constitution permits Congress to award an inventor a
patent if and only if an "invention" does indeed exist. In
determining whether an invention worthy of patent protection does
exist, the Constitution requires the invention proffered by the
applicant to be new,
useful and the embodiment of a scientific advance. This last
requirement, the embodiment of a scientific advance, is what we have
come to know as the non-obviousness requirement. Although this
concept did not appear in the Patent Act itself until the 1952
revisions, it seems clear that it has always been considered a
constitutional prerequisite to patentability. |
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The constitutional reward of a patent, together with the
constitutional requirements of utility, novelty and non-obviousness,
represent a delicate balance struck between the need to encourage
innovation and the avoidance of exclusive rights that stifle
competition without any concomitant advantage to society. In
implementing the permissive Constitutional authority, Congress is
free to place requirements upon the acquisition of a patent that
further the goals of the clause, while at the same time not
compromising the specific dictates of the grant of power.
Indeed, in so fashioning the patent laws to enhance the quid pro quo
envisioned by the founding fathers, Congress has enacted certain
description requirements that further the goals of the Patent Clause,
but which are not constitutional requirements in and of themselves.
This is true because while an adequate description is required, the
Patent Clause itself does not discuss the particular requirements of
the adequate description. For this reason, the metes and bounds of
the final requirement for patentability, namely that the patent
invention is adequately described, is within the province of Congress
to determine.
The utility requirement for patentability does not have an analogous
copyright counterpart. To the contrary, if creations are to be
copyrightable they cannot only be useful, but must also have some
design features that exist separately from the utilitarian features.
Likewise, there is no endeavor to quantify or qualify artist merit
prior to a copyright attaching to an original, copyrightable
creation. Nevertheless, the remaining two constitutional requirements
for patentability, namely the novelty and non-obviousness
requirements, can be analogized with the single constitutional
requirement for copyrights, namely originality. The purpose of the
novelty and non-obviousness requirements is to ensure that an
invention does indeed exist. Similarly, the purpose of the
originality requirement is to ensure that something worthy of
copyright protection has been created. The invention and creation
requirements find commonality in that only creations of the mind that
are fresh, unfamiliar and different are deserving of intellectual
property protection.
Filing a Patent Application
In order to obtain a patent in the United States it will be necessary
to file a patent application. There are various
types of patent applications that can be filed. These are:
If you need assistance preparing and filing a patent application I
highly recommend Legalzoom.com's
patent service. I have had a working relationship with
LegalZoom since right after the inception of the company, and have
helped them develop their intellectual property services, so I
personally know them to offer extremely high quality for a very
reasonable price; indeed at a price that is far lower than you would
pay any attorney. I know so much about their patent offerings because
the system that Legal Zoom uses is a version of my own application
creation system, on which I have a patent pending.
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PLEASE NOTE: If you are going to use
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If you have additional questions about patent law or the invention
process please take a look at the links below, which are to
additional information regarding the invention process, US patent law
and patent practice before the United States Patent Office.
From the pages of IPWatchdog.com
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