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PATENT LAW
This page is all about patent law, and defines what patent
is, as well as give legal advice on patent application
or patent registration.
What is a patent?
A patent is a property right granted by the government to an
inventor to exclude others from making, using, offering for sale, or
selling the invention for a limited time in exchange for a public
disclosure of the invention when the patent is granted. The main
body of law concerning patents is found in Title 35 of the United
States Code. In order to be patented an invention must be new,
useful, and not of an obvious nature.
The patent is granted on the new invention itself and not just
upon the idea or suggestion of the new gadget, machine, chemical,
etc. A common misconception is that the patent gives its owner the
right to make, use, or sell the invention. It only gives the owner
the ability to exclude others from making, using or selling the
invention. The patent owner may be forbidden from using the
invention, usually due to the existence of another patent, or
sometimes due to other legal restrictions.
Three Types of Patents
Utility Patent - any new and useful method, process, machine,
device, manufactured item, or chemical compound. The invention must not have been known or used by others in this
country before the applicant invented it, and it also must not have
been patented or described in a printed publication in the U.S. or a
foreign country before the applicant invented it. The philosophy
behind the novelty requirement is that a patent is issued in
exchange for the inventor's disclosure to the public of the details
of his invention. If the inventor's work is not novel, the inventor
is not adding to the public knowledge, so the inventor should not be
granted a patent.
Design Patent refers to new, original or ornamental design for an article of
manufacture granted to protect the appearance rather than the
function of a product. Design patents are generally not suitable for
protecting elements of Internet-related software processes. Design
patents are considered rather narrow intellectual property
protection because they are limited to the ornamental appearance of
an article. Owners of design patents rarely sue to enforce their
patents against infringement. This page is all about patent law, and defines what patent
is, as well as give legal advice on patent application
or patent registration.
Plant Patent applies to inventions or discovery of plant varieties
that can be asexually reproduced (such as grafts or spores).
This protection
is limited to a plant in its ordinary meaning; a living plant organism which expresses a set of characteristics
determined by its single, genetic makeup or genotype, which can be duplicated
through asexual reproduction, but which can not otherwise be "made" or
"manufactured."
Sports, mutants, hybrids, and transformed plants are comprehended;
sports or mutants may be spontaneous or induced. Hybrids may be
natural, from a planned breeding program, or somatic in source.
While natural plant mutants might have naturally occurred, they must
have been discovered in a cultivated area. Algae and macro fungi are
regarded as plants. Bacteria are not considered plants.
What can be patented?
- Process
- Machine
- Article of manufacture
- Composition of matter
- Improvement of any of the above
What cannot be patented?
- Laws of nature
- Physical phenomena
- Abstract ideas
- Literary, dramatic, musical, and artistic works (these can be
Copyright protected).
- Inventions which are: not useful (such as perpetual motion
machines) or offensive to public morality.
Who may apply for a patent?
A patent may be applied for only in the name(s) of the actual
inventor(s), otherwise the patent, if it were obtained, would be
invalid. The person who falsely represented himself/herself to be
the inventor would be subject to criminal penalties.
If two or more persons make an invention jointly, they shall
apply for a patent as joint inventors. A person who makes only a
financial contribution cannot be considered an inventor, and
therefore cannot be joined in the application as an inventor. Errors
regarding the name or identity of a person as an inventor may be
corrected, provided that such error or omission was not tainted with
bad faith.
Should the inventor die prior to the application of a patent
application, his legal representative, i.e., the administrator or
the executor of the estate may file the application. If the inventor
is insane, his/her guardian may file the application. Note: If the
insane inventor filed the application himself/herself during lucid
(sane) interval, the act is considered legal and valid.
The inventor has the right to sell, bequeath, transfer or
otherwise or assign all or part of his/ her interest in the patent
application or patent to anyone by an assignment.
What if the inventor refuses to apply for patent or cannot be
found? If an inventor refuses to apply for a patent or cannot be found, a
joint inventor or, if there is none, a person having a proprietary
interest in the invention may apply on behalf of the non-signing
inventor. Who are disqualified from applying for a patent?
Officers and employees of the United States Patent and Trademark
Office are prohibited by law from applying for a patent or
acquiring, directly or indirectly, except by inheritance or bequest,
any patent or any right or interest in any patent. What is the duration of a patent?
Generally, the term of a new patent is 20 years from the date on
which the application for the patent was filed in the United States
or, in special cases, from the date an earlier related application
was filed, subject to the payment of maintenance fees.
For applications filed on or after June 8, 1995, utility and plant
patents are granted for a term which begins with the date of the
grant and usually ends 20 years from the date you first applied for
the patent subject to the payment of appropriate maintenance fees.
Design patents last 14 years from the date you are granted the
patent. No maintenance fees are required for design patents.
Patents in force on June 8, 1995 and patents issued thereafter on
applications filed prior to June 8, 1995 automatically have a term
that is the greater of the twenty year term discussed above or
seventeen years from the patent grant.
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