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- What is a Patent?
The right conferred by the patent grant is, in the language of the statute and of the grant itself, “the right to exclude others from making, using, offering for sale, or selling” the invention in the United States or “importing” the invention into the United States. What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention. Once a patent is issued, the patentee must enforce the patent without aid of the USPTO.
There are three basic types of patents:
1) Utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof (and can be filed initially as non-provisional or provisional applications, as explained in more detail in Section IV, below);
2) Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture; and
3) Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.
II. What Can Be PatentedThe patent law specifies the general field of subject matter that can be patented and the conditions under which a patent may be obtained.
In the language of the statute, any person who “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,” subject to the conditions and requirements of the law. The word “process” is defined by law as a process, act, or method, and primarily includes industrial or technical processes. The term “machine” used in the statute needs no explanation. The term “manufacture” refers to articles that are made, and includes all manufactured articles. The term “composition of matter” relates to chemical compositions and may include mixtures of ingredients as well as new chemical compounds. These classes of subject matter taken together include practically everything that is made by man and the processes for making the products.
The patent law specifies that the subject matter must be “useful.” The term “useful” in this connection refers to the condition that the subject matter has a useful purpose and also includes operativeness, that is, a machine which will not operate to perform the intended purpose would not be called useful, and therefore would not be granted a patent.
A patent cannot be obtained upon a mere idea or suggestion. The patent is granted upon the new machine, manufacture, etc., as has been said, and not upon the idea or suggestion of the new machine. A complete description of the actual machine or other subject matter for which a patent is sought is required.
- Novelty And Non-Obviousness, Conditions For Obtaining A Patent
- Costs for U.S. Patent Applications
Provisional applications typically run $2500-5500 in attorneys fees and non-provisionals around $5500-8500; however, these prices can vary quite a bit depending on the complexity of the subject matter. (Consequently, I have done very complex non-provisionals that were many times the estimate given, and fairly simple provisionals that were much less than indicated). Design patents are less expensive and can typically be filed for around $1,500 to $2,500. The costs given above do not include filing fees paid to the United States Patent and Trademark Office, which are an additional expense and vary with the income of the filer.
- Preparing an Initial Description/Disclosure for Your Invention
1. Patent specifications typically begin with a discussion of the background of the invention. The purpose of this section is to introduce the context of the invention and, to some extent, to foreshadow what the invention does by showing the gap in prior art that it fills. For example, the background for a new powered lawn tending implement might well include a discussion of other implements of this type and what they do, and conclude with a discussion or at least some remarks as to why all of these implements fail in some way in performing a task that the invention will perform.
2. The next part of the disclosure should be a brief summary of the invention that will outline its structure, function and operation. This should show how the invention “fills the gap” described in the preceding section.
3. A brief description of the drawing figures follows. This can be as simple as: Figure 1 shows a front elevation, Figure 2 shows a cross-section, Figure 3 shows a schematic block diagram illustrating . . . , etc.
4. The Detailed Description is usually the longest part of the specification and consists of a narrative description of the elements and operation of the invention with reference to the numbered parts in the drawing figures. For example: The widget 1 is connected via pivot 1A to the wadget 2 so as to be rotatable . . . , etc.
5. In a normal utility application, the foregoing elements would culminate in claims outlining exactly what is claimed in technical legal terminology. This is not, however, necessary for an initial disclosure.
6. The drawings may be rough or schematic, but should show the basic parts of the invention with numbering of parts. Often, in process or computer based patents, such drawings may come in the form of flow charts and/or block diagrams showing interactions between operative elements of the invention. However, such diagrams will seldom need to be as detailed as old fashioned programming flow charts except in areas critical to the inventive concept. I.e., what everyone already knows or does can usually be covered simply and broadly in the specification and drawings, but what is at the heart of the inventive concept should be covered in detail.
VI. Foreign Filing of Patent Applications
It is also possible to file for foreign protection, but this is a more complex procedure, and the costs will vary widely depending on where and how many such applications will be filed.
What Is a Trademark or Servicemark?A trademark is a word, name, symbol, or device that is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others. A servicemark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. The terms “trademark” and “mark” are commonly used to refer to both trademarks and servicemarks.
Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark. Only trademarks that are used in interstate or foreign commerce may be registered with the USPTO. Generally, if you have a website where you are actually selling to interstate or international customers, that will qualify. However, there are also state trademark laws for registration of trademarks that are only used in-state.
What is a Copyright?Copyright is a form of protection provided to the authors of "original works of authorship" including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished. The 1976 Copyright Act generally gives the owner of copyright the exclusive right to reproduce the copyrighted work, to prepare derivative works, to distribute copies or phonorecords of the copyrighted work, to perform the copyrighted work publicly, or to display the copyrighted work publicly.
The copyright protects the form of expression rather than the subject matter of the writing. For example, a description of a machine could be copyrighted, but this would only prevent others from copying the description; it would not prevent others from writing a description of their own or from making and using the machine. Copyrights are registered by the Copyright Office of the Library of Congress.