Patent laws
This chapter discusses some general information about patents, such as the definition of a patent, the constitutional basis for and public policy to be served by patents and the laws governing patents. Other topics discussed briefly are who may apply for a patent, how and when to apply for a patent, categories of patents and the rights of patent holders.
II. Definition of a patent
A patent is a contract between an inventor and the U.S. government under which the government grants the inventor a limited monopoly. The limited monopoly gives the inventor the right to exclude others from making, using or selling a claimed invention in the Unites States for a period of years. In return for these patent rights, the inventor discloses the complete invention to the public in order to promote the progress of science.
Under the General Agreement on Tariffs and Trade, the term of a U.S. patent is changed from seventeen years from the issue date to twenty years from the filing date. When applicable, the filing date of the earliest U.S. patent application is used to measure the twenty year term. This change will apply to all U.S. patent applications filed on or after June 8, 1995.
Patent applications filed before this date will be entitled to a term of seventeen years from the issue date or twenty years from the filing date, whichever is longer. Also, any U.S. patent issued before June 8, 1995, will automatically have a term of seventeen years from the issue date or twenty years from the filing date, whichever is loner. Accordingly, the term of some previously issued patents might now be longer than seventeen years.
The intellectual property and communications omnibus reform act of 1999 provides for patent term guarantee. If the United States patent and trademark office has caused a certain delay in the prosecution of a patent application, the term of a patent is increased by the time caused by the trade mark offices delay. If however, an applicant for a patent has caused a certain delay in the prosecution, the time caused by the applicant's delay is subtracted from the aforementioned increase.
The paten term guarantee is applicable to an application which is pending for three years or more and is intended a guarantee a term of seventeen years for a patent if the applicant diligently prosecutes the application. The guarantee is also available for the time period of an appeal, interference or a secrecy order.
III. Patents promote the progress of science
The progress of science is enhanced in geometric proportions by the patent system. For instance, an inventor, a first person, makes the required full disclosure of the invention in a patent application. When the patent issues it becomes, in effect, a publication.
A second person, interested in the subject matter of the invention, reads the issued patent. The second person conceives an improvement over the patented invention and files a patent application based on the improvement. A patent then issues to the second person.
Subsequently, a third person reads about the improved invention in the second patent and conceives an improvement on the improvement. The third person files a patent application. One idea has thereby spawned countless new inventions for the benefit of the public.
IV. Laws and rules governing patents
The constitution grants congress the power to pass laws relating to patents . The patent laws are promulgated in title 35 of the United States code. Hereafter, Section numbers will refer to title 35.
The Commissioner of Patents and Trademarks has authority from Congress to establish rules and regulations for the conduct of proceedings relating to the granting and issuing of patents, known as "Patent Office Prosecution". These rules and regulations are set forth in Title 37 of the Code of Federal Regulations. Hereafter, Rule numbers will relate to Title 37.
Detailed procedures to be followed in the prosecution of patent applications before the United States Patent and Trademark Office are published in the Manual of Patent Examining Procedure.
V. Applying for a patent
Who may apply
An application for a patent must be filed by the actual sole inventor or joint inventors of an invention. There are several exceptions to this requirement.
If the inventor is dead, the legal representative, such as the executor or administrator, may apply for a parent on behalf of the deceased inventor. Similarly, if the inventor is insane or otherwise legally incapacitated, the legal representative, such as a guardian or conservator, may apply.
If there are joint inventors and if a first inventor refuses to file a patent application or if a first inventor cannot be located, another party may file on behalf of the first inventor where the invention has been designed to the party, where the inventor has agreed in writing to assign the invention to the party or where the party otherwise shows sufficient proprietary interest in the invention.
How to apply
A patent application must be filed in the United States Patent and Trademark Office, which is located in Arlington Virginia. The application must be in writing and must be submitted by the inventor by someone on behalf of the inventor, such as an attorney authorized to practice before the United States Patent and Trademark Office in patent matters.
When to apply
As soon as an inventor conceives an invention or actually makes the invention, the inventor should record the date of this event with proper witnessing. The inventor should then promptly apply for a patent by filing an appropriate application.
Before filing a patent application, however, an inventor may investigate the possibility that the subject matter of the invention has been previously known to others. A search in the United States Patent and Trademark Office might reveal related patents. Depending on the results of the search, the inventor may or may not file an application for a patent.
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