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A patent is simply a right granted by the government that allows the inventor to prevent anyone else from making, selling, or using, the patented invention in the country that issued the patent.
The government grants the exclusive patent right to help encourage inventors to invest the time, effort, and money required to invent new products and technologies. Patents are the fuel that keep the fires of innovation burning.
In the US, the effective term of a new patent is 20 years from the patent application date, or in special cases, from the date an earlier, but related patent application was filed (subject to the payment of all required patent maintenance fees).
When a patent term expires, the invention enters what's commonly known as the "public domain". Once in the public domain, anyone is allowed to make, sell, or use the patented invention without asking permission or owing any royalties to the original patent holder.
The government allows patents to eventually expire, because if they didn't, one person (or one company) would likely control an entire industry if that person (or company) was the first to patent a type of product.
Patent law specifies the general types of subject matter that can be patented and the conditions under which a patent for an invention must be secured. Anyone 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 requirements and conditions set forth in the law.
Before an invention can be patented, it must be new as defined in the patent law. Patent law provides that an invention cannot be patented if:
- The invention was previously known or used by others in this country, or described in any printed publication or patented in the United States or any foreign country, before the invention thereof by the applicant for patent.
- The invention was described in any printed publication or patented in the US or any foreign country or in public use or on sale in the US more than one year prior to the application for the patent.
If the invention has already been described in any printed publication anywhere in the world, or if it has been in public use or on sale in the United States before the date that the patent applicant created his/her invention, a patent cannot be granted.
If the invention has already been described in a printed publication anywhere at all, or has been in public use or on sale in America for more than a year prior to the date on which a patent application is filed, a patent cannot be granted.
It's immaterial when the invention had been made, or whether the public use or printed publication was by the original inventor himself or by someone else.
If the inventor uses the invention publicly, describes the invention in a printed publication, or places it on sale, he must submit an application for a patent before one year has gone by or he will lose his right to a patent for the invention.
But in many foreign countries, the inventor must file on the date of first public use or disclosure in order to preserve his patent rights.
According to patent law, only the inventor may apply for a patent for his or her invention, with a few narrow exceptions:
- If the inventor is no longer living, the patent application may be submitted by his legal representatives, including the executor of his estate.
- If the inventor is mentally incapacitated, the patent application for an invention may be submitted by a guardian.
- If the inventor refuses to apply for a patent for his inventions or if he can't be found, a joint inventor, or if there is no joint inventor available, a person having a proprietary interest in the invention may submit a patent application on behalf of the non-signing inventor.
If two or more people jointly create an invention, they may apply for a patent as joint inventors. Anyone who provides only a financial contribution for the invention is not a joint inventor and is not allowed to join in the patent application as an inventor.
Understanding your rights and responsibilities under the patent laws is crucial to protecting your vested interests when you create a new invention. You may wish to consult a patent attorney or other experienced patent professional to help you patent your great new idea.
Neil Armand is an Intellectual Property Professional. Visit him at http://www.gcchq.com.
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