Patents

The Constitution of the United States gives Congress the power to enact laws relating to patents. The right conferred by the patent grant is, in the language of the patent 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, or sell the invention, but rather the right to exclude others from making, using, offering for sale, selling or importing the invention.

The three types of patents include: Utility patents, Design patents, and Plant patents. Utility patents are the most common type of patent granted by the USPTO and protect mechanical, electrical, and chemical inventions. In general terms, a Utility patent protects the function of an invention, including the way the invention is used and how it works. A Design patent, on the other hand, protects the non-functional, ornamental appearance of an invention, meaning the shape and look of the invention. A Plant patent is somewhat different and protects a new variety of an asexually reproduced plant.

To be patentable, an invention must be new, useful, and not obvious. Therefore, it is highly recommended that a patentability search be conducted by a qualified professional prior to filing an application for patent in the USPTO. Filing for patent protection involves preparation of a patent application consisting of a discussion of the background of the invention, a detailed description of the invention's structure and function, a legal definition (i.e., claims) of the patent rights being sought, and, in most cases, formal drawings prepared by a qualified patent draftsman. A patent application has often been described by legal experts as the most complex legal document to prepare because it must conform to strict regulations so as to result in a patent that is valid and enforcable. In particular, the claims in the patent application must be written in the proper legal terminology that adequately protects an intangible property right that cannot be physically measured, but which may be extremely valuable. For this reason, the USPTO strongly encourages inventors to use the services of a registered patent attorney or agent when filing an application for patent.

The United States patent law allows inventors up to one year from the date of first public disclosure of an invention to file an application for patent in the USPTO. However, in most foreign countries a patent cannot be obtained if the effective patent application filing date in that country is after the date of public disclosure of the invention. Accordingly, it is important to maintain the secrecy of an invention until a U.S. patent application has been filed in the USPTO. Pursuant to an international agreement, most foreign countries allow an inventor to file a foreign patent application based on a previously filed U.S. patent application up to one year from the filing date of the U.S. patent application, with a right to claim priority to the U.S. patent application filing date. This is important to preserve foreign patent rights, particularly if an invention has been disclosed to the public after the filing date of a U.S. patent application.

Under the United States Patent Law, only a Registered Patent Attorney (or Agent) may file and prosecute a patent application in the USPTO on behalf of an inventor, unless the inventor attempts to do so alone. An attorney who is not registered to practice before the USPTO is not permitted to file a patent application for an inventor. To be qualified, Registered Patent Attorneys (and Agents) are required to have an engineering or scientific educational background and must pass a special patent bar exam given by the USPTO.

Please refer to the FAQ's page for more information about patents, trademarks and copyrights.

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