United States patent law

Under United States law, a patent is a right granted to the inventor of a (1) process, machine, article of manufacture, or composition of matter, (2) that is new, useful, and non-obvious. A patent is the right to exclude others from using a new technology. Specifically, it is the right to exclude others from making, using, selling, offering for sale, importing, inducing others to infringe, and/or offering a product specially adapted for practice of the patent.[1]

United States patent law is authorized by the U.S. Constitution. Article One, section 8, clause 8 states:

The 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;

Patent law is designed to encourage inventors to disclose their new technology to the world by offering the incentive of a limited-time monopoly on the technology. This limited-time term of patent is 20 years from the earliest patent application filing date (but this term can be extended via patent term adjustment). After the patent term expires, the new technology enters the public domain and is free for anyone to use.

Substantive law

Patent law is found under Title 35 of the United States Code. The "patentability" of inventions (defining the types things that qualify for patent protection) is defined under Sections 100-105. Most notably, section 101[2] sets out "subject matter" that can be patented; section 102[3] defines "novelty" and "statutory bars" to patent protection; section 103[4] requires that an invention must not only be new, but also "non-obvious".

Patentable subject matter (§101)

"Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof may obtain a patent therefor, subject to the conditions and requirements of this title." 35 U.S.C. 101. To be patent eligible subject matter, an invention must meet two criteria. First, it must fall within one of the four statutory categories of acceptable subject matter: process, machine, manufacture, or composition of matter. Second, it must not be directed to subject matter encompassing a judicially recognized exception: laws of nature, physical phenomena, and abstract ideas.

Novelty (§102)

Section 102 of the patent act defines the "novelty" requirement. The novelty requirement prohibits patenting a technology that is already available to the public. Specifically, 35 U.S.C. 102 states:

(a) NOVELTY; PRIOR ART.—A person shall be entitled to a patent unless—

(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention...

For a technology to be "anticipated" (and therefore patent-ineligible) under 35 U.S.C. 102, the prior art reference must teach every aspect of the claimed invention either explicitly or impliedly. “A claim is anticipated only if each and every element as set forth in the claim is found, either expressly or inherently described, in a single prior art reference.” Verdegaal Bros. v. Union Oil Co. of California, 814 F.2d 628, 631 (Fed. Cir. 1987).

Obviousness (§103)

To be patentable, a technology must not only be "new" but also "non-obvious." A technology is obvious (and therefore ineligible for a patent) if a person of "ordinary skill" in the relevant field of technology, as of the filing date of the patent application, would have thought the technology was obvious. Put differently, an invention that would have been obvious to a person of ordinary skill at the time of the invention is not patentable. Specifically, 35 U.S.C. 103 states:

35 U.S.C. 103 Conditions for patentability; non-obvious subject matter.

A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains.

The non-obviousness requirement does not demand that the prior art be identical to the claimed invention. It is enough that the prior art can somehow be modified in order to teach the claimed technology. So long as the modification of the prior art (or combination of several prior art references) would have been obvious to a person of ordinary skill in the art at the time the application was filed, the applied-for technology will be considered obvious and therefore patent-ineligible under 35 U.S.C. §103.

Patent application procedure

U.S patent

Patent applications can be filed at the United States Patent and Trademark Office. The application process is somewhat slow and generally expensive. Estimate $10,000 to $30,000 dollars in filing and legal fees, and about 3 years from filing the application to the issue date.

The rules for drafting and filing a patent application are set out in the Manual of Patent Examination Procedure (or "MPEP").

Pre-grant publication (PG Pub)

Since the American Inventors Protection Act, the United States Patent and Trademark Office publishes patent applications 18 months after they are filed. This time limit can be extended under certain circumstances, for an additional fee.[5] The applications may be published before a patent has been granted on them if the patent is not granted within the 18 month time frame. Applicants can opt out of publication if the applications will not be prosecuted internationally.[6]

Patent infringement, enforcement and litigation

International Trade Commission (ITC)

In the United States, a patent holder may wish to pursue a cause of action in the ITC instead of, or in addition to the court system. In contrast to courts, which have a wide range of remedies at their disposal, the ITC can only do one thing when it comes to patent infringement: grant or deny injunctive relief by ordering to keep infringing products from being imported into the United States. In some cases, this may provide a quicker resolution to a patent owner's problems.

Women and patents

Women have always been able to secure patents in the United States. The first patent issued to a woman was US X1040 “In Weaving Straw with Silk or Thread”. This was issued to Mary Dixon Kies of Killingly, CT on May 5, 1809.[7] The only known copy of this patent was destroyed in the US patent office fire of 1836.

Patents issued to women have been cited in support of the inherent inventiveness and industry of women. Noted 19th-century reformer Ida Tarbell, for example, said regarding women and patents:[8]

“No improvement which a woman can originate will be slighted because it comes from the hand of a woman. It only remains for her to take full possession of a field in which there is abundant opportunity for her to win great successes and do great good”

Utilization and importance

A survey of 12 industries from 1981 to 1983 shows that patent utilization is strong across all industries in the United States, with 50 percent or more patentable inventions being patented.[9]

However, this is not to say that all industries believe their inventions have relied on the patent system or believe it is a necessity to introduce and develop inventions. Another survey for the same time period show that, of those 12 same industries, only two - pharmaceuticals and chemicals - believe thirty percent or more of their patentable inventions would not have been introduced or developed without having patent protection. All others - petroleum, machinery, fabricated metal products, primary metals, electrical equipment, instruments, office equipment, motor vehicles, rubber, and textiles - have a percentage of twenty-five or lower, with the last four of those industries believing none of their inventions relied on the patent system to be introduced or developed.[9]

Industry Percent That Would Not Have Been Introduced Percent That Would Not Have Been Developed
Pharmaceuticals 65 60
Chemicals 30 38
Petroleum 18 25
Machinery 15 17
Fabricated Metal Products 12 12
Primary Metals 8 1
Electrical Equipment 4 11
Instruments 1 1
Office Equipment 0 0
Motor Vehicles 0 0
Rubber 0 0
Textiles 0 0

See also





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