What Is a Patent?

By Haim Factor Wednesday, December 8, 2010

Now that we have a basic definition of types of IP (see our blog post on Intellectual Property) let’s take a look at patents. The basis in the law for patents is in the US Constitution. Today, patents are the mechanism “…to promote the progress of science and useful arts…” (U.S. Constitution, Article 1, Section 8, Clause 8).

A US Patent is a property right granted by the U.S. government to an inventor. The inventor is given the right to exclude others from making, using, selling, or offering for sale the invention throughout the United States or importing that invention into the United States. This right is time limited and it is territorial, meaning it applies only to the U.S. and is not worldwide. 

(Related: Patent Protection Outside the U.S.)

Finally, a patent is a private right, meaning the owner must enforce it himself.

To receive the right described above, the inventor must disclose his invention to the public through the patent filing mechanism. In exchange the inventor receives, for a limited period of time, the exclusive right to control how the invention is used—as noted above.

There are 3 types of patents awarded in the US: Utility, Design, and Plant patent.  We’ll focus on utility patents here.

What Is a Utility Patent?

Utility patents are what most people think of when talking about useful processes, machines, articles of manufacture, and compositions of matter having practical utility.

There are three primary requirements in the law for utility patents (the notations in parenthesis are the applicable patent law, 35 United States Code):

  • Utility (35USC, 101) -the invention is useful or has utility
  • Novelty (35USC, 102) – the invention  is new or novel
  • Obviousness (35USC, 103) – the invention is NOT obvious, meaning it is not trivially different than other art known prior to the invention.

While a full discussion of patent law is out of the scope of this blog, it’s important to emphasize that if a useful process, machine, article of manufacture, or composition of matter LACKS any of the 3 requirements above, it simply cannot be called a patent.

A simple example of lack of utility would be for a “perpetual motion machine.” Likewise, most people readily understand when, for example, a machine is proposed that is not novel or new compared to prior art. Probably the most difficult hurdle to overcome when applying for a patent is to show that the article of manufacture, for example, is not an obvious combination of other prior art.

You can get a complete overview of Patent Protection in the United States by looking at USPTO's website.

*Haim Factor is a registered USPTO Patent Agent with nearly a decade of experience in patent drafting, prosecution, and overall IP strategies. His clients take advantage of his rich experience of over 25 years in business development of a wide array of B2B and B2C products and his experience with intellectual property protection both within the US and internationally.

He can be contacted at: haim.factor@1st-tech-ideas.com and at 302.200.1424.


Next: How to Obtain a Patent


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