what is a patent?

A patent is a limited right granted by a government (all patents are limited by country) that allows the inventor to stop other people or companies from making, using or selling a specifically defined invention. In the United States, a patent term lasts for a period of twenty years from date of the filing of the patent application.

Patent Misunderstanding

The main thing about patent law that is usually misunderstood is the fact that patents grant only the right to stop others from making, using and selling the invention. In other words, patents may only be used to fence off certain features of the invention from competitors, and it does not mean that the owner of the patent is not infringing on the patent rights of another patent holder.

Types of Patent Applications

The process of actually obtaining a patent begins with the filing of a patent application with the USPTO. There are two types of patent applications that may be filed: provisional applications (patent pending) and non-provisional applications (Utility & Design Patents).

Provisional patent applications are not examined by the USPTO and never directly become an actual patent. They are placeholders used as a way to get a filing date for the technical description that is contained in the application. All provisional applications must have a non-provisional application filed in their place within one year of the provisional filing date. The filing date of the provisional application, however, only covers the written description contained in the provisional application. Any new information added in the non-provisional application is only entitled to the filing date of the non-provisional application.

Non-provisional applications (utility or design), unlike provisional applications, are examined by the USPTO. If all of the requirements for patentability are satisfied, the non-provisional application will mature into a patent.

Both provisional and non-provisional applications must include a complete written description or specification of the invention. The written description must fully comply with the requirements discussed above, being a complete and clear description of how to make and use the invention. It is very important to consider, especially when filing a provisional application, whether all of the technical details of the invention are developed enough to be included in a complete description, because the non-provisional application and ultimate patent will have to depend on it. This is even more important if a Bar Event either has happened or will happen before the filing of the non-provisional follow up to the provisional application. This is because no new technical information can be added to the written description without getting a new filing date. Once a Bar Event has happened, new filing dates after the Bar Event may prevent the invention from being patented, because it is no longer “new.” The filing of a summary provisional application may NOT, therefore, preserve all patent rights in an invention.

What is in a Patent?

A patent includes a complete technical description of the invention, together with other older related inventions and devices, which will be helpful for the reader to understand the new invention. The text of a patent typically includes a section on the background of the invention, which typically includes a review of those inventions or devices already known to the public. These older inventions and other information known to the public are called “prior art.” The prior art includes all information, which is related to the claimed invention. The prior art is not what is actually known by the inventor, but what is generally known to all people skilled in the particular field that is the subject matter of the patent application. During examination, the invention is compared to the prior art to see what the inventor has really invented. A patent continues with a detailed description of the invention itself. The description must be in enough detail that readers who are skilled in the field of the invention can make and use the invention themselves. The patent document also may contain detailed drawings.

The Claims

The patent ends with the recitation of the actual boundaries of the invention, known as the “claims.” Claims are one-sentence descriptions of the precise features, which make up the invention. For example, a stool might be claimed as: “A device for supporting a person in a sitting position, having a flat seat supported some distance from the ground by legs.” A chair, on the other hand, might be claimed as: “A device for supporting a person in a sitting position, comprising a flat seat, a back support attached to the seat, and legs supporting the seat some distance from the ground.” The chair would be patentable “over” the stool, as it has a unique element not found in the stool, namely, the back. The stool, would, however, not be patentable in light of the chair.

Like the “metes and bounds” of a real estate deed, the claims lay out the exact coverage of the patent, and identify for others what items must be left out of any competitive device to avoid infringement. Infringement is found when another device, sometimes called the “accused product,” includes all of the elements listed in the claims. Using the example above, the chair would infringe the stool claim, because it has all of the elements, but the stool does not infringe the chair claim, because it doesn’t have a back. Writing the claims of a patent application is important and skilled work, usually performed by a patent attorney. It is important when creating the claims to balance the number of elements necessary to get a patent allowed (since including more elements makes the invention more patentable because the elements are not shown in the prior art) and the minimum number of elements that describe the invention (since including less elements makes it easier to find infringement in other devices). A “broad” claim is therefore one, which claims the least number of elements or required parts.

NEXT PAGE >>>