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According to the World Intellectual Property Organization (WIPO):
A patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem. To get a patent, technical information about the invention must be disclosed to the public in a patent application.
This micro-course explores all concepts mentioned here, including how exclusive rights function in national and international contexts, the technical information needed in the application process, and how you can find and comprehend this technical information once it’s disclosed.
But what qualifies as a “product or process,” and what is meant by “a new way of doing something” or “a new technical solution to a problem”? These ideas vary slightly internationally, but, in the U.S., this effectively includes:
“Processes” also refers to innovative uses of existing inventions, which some patent experts consider an additional, distinct category. Taken individually or in combination with each other, these categories function as a general, but comprehensive, list of patent-protectable matter. Patent applicants do not need to specify a category, however, as overlap is expected.
In the U.S., patents can also protect asexually reproducing plants (protectable with plant patents) and non-functional, ornamental designs (protectable with design patents). Most other countries and regions protect these forms of intellectual property by means other than patents.
Based on the description above, it may seem that you can patent just about anything, but many creative works are categorically unpatentable.
Some are protectable through other forms of intellectual property. For instance, creative works expressed through writing, music, or art are protectable by copyright, and words and symbols that indicate a good or service in the marketplace are protectable by trademark. To learn more about these types of intellectual property, refer to the Introduction to Intellectual Property micro-course.
In addition, many patent offices deem some specific inventions and discoveries patent ineligible. For instance, the U.S. Patent & Trademark Office (USPTO) will not grant patents to:
Patent examiners also thoroughly review applications for additional qualities, including utility, novelty, and non-obviousness, explained in the Specific Criteria section below.
A common misunderstanding about patents is that they provide patent owners the right to produce and market their inventions. There is, in fact, no legal requirement that a product be patented for it to be marketed. Many inventors and entrepreneurs do not or cannot protect their intellectual property for various reasons, including:
Patents are effectively an exchange between an individual or business and a patent-granting body.
This exchange encourages innovation in both the short-term—by providing inventors and entrepreneurs of today with a period of time in which they can commercialize their inventions without fear of being copied—and the long-term—by providing inventors and entrepreneurs of tomorrow with detailed information they can use to improve upon past innovations. There are also limitations to the protection offered:
The most commonly-granted patents in the U.S. are utility patents, which cover “new, useful, and nonobvious process[es], machine[s], article[s] of manufacture, or composition[s] of matter, or any new and useful improvement thereof.”
In the U.S., utility patents protect inventions for a maximum of 20 years from filing date, pending maintenance fees due at 3.5, 7.5, and 11.5 years after the patent is granted.
In many countries, patent protection is available only for inventions that would fall under the category of utility patent in the U.S.–in these countries, a “utility patent” would simply be a “patent.” In the U.S., however, “utility” distinguishes these patents from plant patents and design patents.
Types of utility patents include:
Select an image to view it full screen or select the caption to read the patent.
Plant patents protect asexually reproducing plants, excluding edible tubers and plants found in an uncultivated state. Some plants or aspects of plants not covered by plant patents are protectable by utility patents, and through the Plant Variety Protection Act (PVPA), which protects seeds and tubers.
Plant patents are unique to the U.S., with other countries offering intellectual property protection for plants through other legal means. Plant patents provide 20 years of protection from the filing date, with no maintenance fees required.
Types of patentable plants include:
Select an image to view it full screen or select the caption to read the patent.
Design patents protect ornamental designs. This includes non-functional elements of an invention for which the functional elements are protected by utility patents (e.g., an attractive outer casing for a new model of phone) or non-functional designs for which there is no related utility patent (e.g., a distinctive-looking pair of normally-functioning shoes).
Design patents function as an industrial design right in the U.S. In most countries, industrial design rights are not protected under patent law, but through other legal means. Effective May 13, 2015, U.S. design patents provide 15 years of protection from filing date, with no maintenance fees required (design patents granted prior to that date provide 14 years of protection from filing date).
Types of patentable designs include:
Select an image to view it full screen or select the caption to read the patent.
This micro-course focuses primarily on utility patents, but highlights important differences for plant patents and design patents where applicable.
As mentioned above, patent examiners review patent applications to confirm that the inventions fit in the broad categories of processes, machines, manufactures, and articles of matter. They also check for three additional requirements specified in U.S. Code 35, which governs U.S. patent law:
Usefulness is often the easiest criterion for patent applicants to satisfy. Basically, for an invention to be patentable, it needs to work. Patent examiners do not assess patent applications for level of helpfulness; inventors have successfully patented inventions as seemingly non-useful as a finger-mounted flyswatter, a method and equipment for making a light-up snow person, and a “self-congratulatory” back-patting device.
Usefulness is a requirement in the U.S. for both utility and plant patents, but not for design patents, which are issued for ornamental, non-functional innovations only.
The “novelty” and “non-obviousness” requirements both, hinge on the existence of “prior art.”
“Prior art” is one of the most important concepts in patent law. It refers to all publicly available information that anticipates, in part or full, the invention. What is considered “prior art” varies slightly based on country or region; however, “prior art” generally includes:
Patent examiners use all available prior art to determine an invention’s novelty. An invention’s novelty may manifest in its physical differences (such as the addition, modification, or subtraction of a component), new combinations of existing parts, or new use.
Most successful patent applicants search for and reference prior art in their applications so that they can adequately explain why their inventions are distinct from that prior art. During the examination process, patent examiners then search for additional prior art. They then determine whether the invention is distinct from all prior art discovered by both applicant and examiner.
Examiners evaluate not just on whether the prior art anticipates the invention in its entirety, but whether it anticipates any of the patent’s individual claims (the enumerated list in every patent that defines the scope of protection; claims are covered in Lesson 3).
“Non-obviousness” is the most challenging requirement to meet for many patent applicants. In short, the patent office may deem the invention obvious if a person with “ordinary skill” in the subject/discipline/field would conclude that the invention:
For instance, if you were trying to patent a small modification to a bicycle component, you might easily fulfill the novelty requirement by demonstrating that it is technically distinct from all similar components on the market, but unless you can credibly specify an unexpected difference this modification brings to a bike’s functionality, your patent application might be rejected for obviousness. Thus, successful patent applicants must demonstrate knowledge of prior art and also clearly explain an invention’s novelty and non-obviousness in relation to that prior art.
Usefulness, novelty, and non-obviousness form the basis of evaluating the invention, itself for patentability; however, patent examiners review many other elements of the applications, including descriptive detail.
Examiners assess whether the applicant has adequately explained the invention with enough detail that someone in the same field or discipline as the inventor would be able to recreate and use it. This supports one half of the exchange at the heart of the patent process mentioned in 1.2 of this lesson: the exclusive right conferred to the patent holder comes at the cost of revealing how the invention works. This level of detail makes patent documentation not just useful for those performing prior art searches for patentability, but a powerful information resource for everything from product design to historical research on technology.
You have designed an innovative new tool for home gardening purposes. What would be the most likely means of protecting your intellectual property?
As this is a machine that offers new functionality, the most likely means of protection would be a utility patent. Despite the fact that we design new tools, design patents can be used to protect only non-functional, ornamental innovations. Plant patents can be used to protect asexually reproducing plants, but not the tools we use to garden or harvest those plants. Copyright is typically used to protect creative works, not functional items.