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One form of intellectual property, a patent is a set of exclusive rights
granted by a government to an inventor or applicant for a limited amount of
time (normally 20 years). The term patent originates from the term to patent
which means to lay open (to public inspection) and the term letters patent,
which originally denoted royal decrees granting exclusive rights to certain
individuals or businesses. Per the word's original definition, one widely
accepted social goal of patents is to induce the inventor to disclose
knowledge for the advancement of society in exchange for a limited period of
Rights granted and rights not granted
A modern patent provides the right to exclude others from making, using,
selling, offering for sale, or importing the patented invention. Generally,
patents are enforced only through private actions; namely, through civil
lawsuits or licensing agreements. Governments typically reserve the right to
suspend or cancel a patent at will.
An application for a patent (other than a design patent) must explain how to
practice (i.e., make and/or use) the invention(s) and must also include
"claims" that particularly point out the invention(s). Generally, the
exclusive rights are limited to the invention(s) defined by the patent's
claims. Patent claims are typically of the form of a long sentence, e.g.,
"An apparatus for catching mice comprising, a base member for placement on a
flat surface, a spring member...", "A chemical for cleaning windows
comprised of 10-15% ammonia, ...", "A method for computing future life
expectancies, the method comprising gathering personal data including X,Y,
Z, ...", etc.
Claim language formats and practices vary widely between different
countries. Each word of a claim is considered an "element" of the claim. In
order to exclude someone from using your invention in a court you will have
to demonstrate to the court that what the other person is using is identical
to the claimed invention. (Note, while the United States is moving towards
more rigid claim interpretations and generally, issued patents have a large
number of claims, the practice elsewhere in the world differs.)
If an inventor takes an existing patented mouse trap design and modifies it
to make an improved mouse trap and obtains a patent on the improvement, she
can legally (at the risk of being sued) build her improved mouse trap only
with permission from the patent owner of the original mouse trap, assuming
the orginal patent is still in force. However, if the original patent owner
tried to copy the inventor's improvement, she could sue that original patent
owner to exclude them from using her patented invention without permission.
Continuing the example though, if the inventor's improved mouse trap patent
claims a guillotining member, but the original manufacturer copies other
unclaimed aspects of the improvement, the inventor might not be able to
exclude the manufacturer from using those other improvements.
For this reason, it is important, especially in the United States, that the
patentee eventually obtain patent claims that include the absolute minimal
set of items that differentiate a new invention over what came before.
Dependent claims can be used to describe additional variations and features.
At this time, there are a number of significant international treaties
governing patent law and the United States, European Union, and Japan, are
parties to the significant ones. This has lead to significant harmonization
of patent law worldwide, particularly in the last ten to fifteen years.
Procedurally, the United States system is perhaps one of the more unusual
although some recent changes have brought the United States' system further
into line with other major patent systems. The biggest difference that
remains is that the US system awards the patent to the "first to invent",
yet in the rest of the world the "first to file" is awarded the patent. In
contests between different inventors over priority (called "interferences"),
however, the second one to file has the burden of proof and usually loses
Patent grants are territorial in nature. Thus, patent protection in multiple
countries require separate filings of patent applications in each country,
or region, where protection is sought. Within Europe, it is possible to
apply for a patent with the European Patent Office; but these are not true
regional patents, see Community Patent for discussion.
Many of the international treaties are designed to afford some recognition
of filing dates to patent applications filed in one country. Typically,
inventors are allowed one year from the date of their filing in their home
country to file the application abroad, frequently called national stage
filing. Systems such as the Patent Cooperation Treaty or PCT allow inventors
a cost effective way to further delay national stage filings.
The authority for patent statutes in different countries varies. In the
United States, the authority is rooted in Article One, Section 8 of the
United States Constitution. In other countries, the origin may be a statute
or other law or rule.
Examination process and procedure
Typically, an application for a patent is examined before a patent is issued
or granted for an invention. That is to say, the application is reviewed by
a patent examiner for patentability.
Some countries do not formally review patents and others will accept the
judgment of other patent examining authorities. For example, some smaller
countries, such as Belgium, will grant a patent automatically or with
minimal examination if a patent has been granted on the same invention in
the United States, European Union, or Japan.
A typical examining procedure is:
1. Filing a patent application by inventor or applicant.
2. Formalizing of application (signatures by inventors or applicant),
often filed at the same time as the application.
3. Initial Publication at 18 months from earliest claimed filing date. US
applicants can request non-publication if the application is not filed
outside the United States.
4. Review by Examiner, including back and forth negotiation with applicant
to narrow/modify the claim language.
5. Publication for opposition, period of time in which other companies and
inventors can challenge the proposed patent grant. (Not in the US)
6. Grant of patent if standards for patentability are met.
The specifics of the review process include:
1. Verifying that claims are for a patentable subject matter.
2. Unity of invention, since each patent application can only be for one
invention (called "restriction" practice in the United States).
3. Formalities. Is the claim grammatically correct, properly drawn, and
4. Utility or industrial applicability.
5. Novelty (newness)
6. Non-obviousness or inventive step.
Different patent systems use different terms and different standards for
these concepts, of which the most important probably are: patentable subject
matter, novelty and non-obviousness.
Patentable subject matter
The standard for what is patentable subject matter in the United States is
"anything under the sun made by man" that is new (novel), useful, and
non-obvious. Similar standards for patentability apply in Japan and the
European Patent Office (EPO). Under US law, a claimed invention lacks
utility (usefulness) if it does not have a described specific, substantial,
and credible use.
Generally speaking, there are three broad categories of patentable subject
matter: processes, machines, and articles of manufacture. Processes include
algorithms, business methods, most software, medical techniques, sports
techniques and the like. Machines includes devices and apparatuses. Articles
of manufacture include mechanical devices, electrical/electronic devices and
compositions of matter such as chemicals, medicines, DNA, RNA, etc.
Mathematical truths, however, are not patentable, and software inventions
implementing algorithms are not patentable for this reason unless there is
some kind of practical application (US law) or technical effect (European
law). The US standard for the patentability of software is more liberal than
that in Europe. Japanese patent law lies between the US and Europe.
Presently in 2001, the patenting of software (and business methods) is quite
controversial from a global perspective. Case law in the United States
permits patents for software and business methods. Yet software as such is
not patentable in Europe, although some inventions that use software can be
patented in Europe.
Patents related to natural compounds (e.g. items found in rainforests) as
well as medicines and medical treatment techniques are also controversial.
There are significant country-by-country differences in handling these
subject matters. For example, in the United States you can get a patent for
a surgical method but you cannot enforce your right to exclude.
Novelty relates to whether something existed before its "invention" by the
applicant or was divulged to the public before the patent application's
filing date. For public disclosures of the invention by the inventor, the
United States permits a 1 year grace period, but most other countries
provide no grace period, instead requiring "absolute novelty".
An invention is not novel if there is a previously existing or divulged
device or process that includes all of the elements of the claimed
invention. Identifying such "prior art" by the patent examiner is
accomplished by a search of literature (technical journals, published and
issued patents, etc.) that predate the filing date of the particular patent application.
The comparison of the relevant prior art to the claimed invention can be
highly technical in the sense that if the patent claim requires a blade to
be between "5 and 10 cm" and a particular reference (one piece of literature
found by the examiner) speaks of a blade having a length of "at least 11
cm", then the reference is insufficient to defeat the novelty of the claimed invention.
Even if an applicant's claim for an invention is technically novel (i.e. not
taught by a single prior art reference), a patent can still be denied to the
applicant if the applicant's subject matter is "obvious". The purpose of
forbidding patents on obvious technologies is to prevent a person from
obtaining exclusive rights to what is effectively already in the possession
of the public, even if documentation of the exact form of the applicant's
embodiment happens to be lacking.
Accordingly, obviousness asks the question whether all previously known
technology related to the invention would teach a "person of ordinary skill
in the art", e.g. someone who does the type of things relating to the
technical field of the invention, how to make the invention. Many
applications for United States patents are initially rejected as being
The standard of obviousness and its application are more subjective and
controversial than that of novelty. If the requirements are set very high,
virtually nothing is patentable. Similarly if the requirements are very low,
all kinds of trivial inventions can receive patents.
Generally, the patent laws make it difficult for patent examiners to employ
hindsight reason in rejecting a claim as obvious, by requiring some teaching
that would motivate a person of ordinary skill in the art to modify the
technology found in the prior to arrive at the claimed invention. In the
United States, objective evidence or secondary considerations of
non-obviousness can overcome a proper obviousness rejection. Such secondary
consideratons can include unexpected results, commercial success, long-felt
need, failure of others, copying by others, licensing, and skepticism of experts.
As a practical matter, during examination the patent examiner will attempt
to locate two or more references that when combined show all of the features
of the claimed invention and indicate that one of ordinary skill would make
that combination. Continuing the example of the claim limitation of a blade
that is between "5 and 10 cm", if a second reference were found that said
something like "in many instances where long blade sizes are required
smaller length blades can be used with equal efficacy", then the examiner
would argue that the two references in combination teach or suggest the
The threshold for the obviousness standard can be particularly frustrating
in genus-species situations. For example, if an inventor finds two species
of a particular genus, e.g. two particular chemical compositions out of
10,000 in the broader genus, should the inventor be entitled to a patent on
the entire genus? Further, what if someone has discovered the genus already,
but not isolated any of the species, are the species obvious in light of the
genus? Under US law, the species may still be patentable if they produce
results that are unexpectedly different than that of other previously known
members of the genus.
For example, suppose a software inventor unveils the quicksort sorting
algorithm to the world but only discloses it using integers (this is the
species). The next day, can someone else file a patent on an "improved"
quicksort suitable for use on any set where a partial ordering can be
defined (this is the genus)? Under US law, this is not a question of
obviousness since a claim to the genus lacks novelty as the species is known.
Term of patent
In virtually every country in the world, the tem of an issued patent is
twenty years from earliest claimed filing date. In the United States, for
applications filed prior to June 8, 1995, the patent term is seventeen years
from the issue date. For applications filed on or after Junee 8, 1995, the
term is twenty years from the earliest claimed filing date. The rules for
patents in force and pending at the transition date (June 8, 1995) are
significantly more complicated but grant the patentee whichever term is longer.
Also, in several countries there are multiple types of patents, and the
twenty year term frequently only applies to so called utility patents and
not design, petit, or other kinds of less heavily examined patents. For
example, the term of a U.S. design patent, which protects the ornamental
shape of objects, lasts fourteen years from its issue date.
If the better mousetrap patent is filed on January 1, 1996 and is issued or
granted on January 1, 2000, it will lapse twenty years from filing: January
1, 2016. However, if the inventor comes up with a second improvement and
claims priority to her first patent when filing the second patent on January
1, 1998, that second patent, after grant, would lapse twenty years from the
earliest claimed priority: January 1, 2016.
Early history of patents
Although there is evidence suggesting that something like patents was used
among some ancient Greek cities, patents in the modern sense originated in
England with the Statute of Monopolies in 1624 under King James I of
England. Prior to this time, the crown would issue letters patent providing
any person with a "monopoly" to produce particular goods or provide
particular services. This power, which was to raise money for the crown, was
widely abused, and court began to limit the circumstances in which they
could be granted. Parliament eventually restricted the crown's power
explicitly through the Statute of Monopolies so that the King could only
issue letters patents to the inventors or introducers of original inventions
for a fixed number of years. Section 6 of the Statute refers to "manner[s]
of new manufacture . . . [by] inventors", and this section remains the
foundation for patent law in England and Australia. The Statute of
Monopolies was latter developed by the courts to produce modern patent law;
this innovation was soon adopted by other countries.
On July 31, 1790 inventor Samuel Hopkins became the first person issued
patent in the United States.
If nature has made any one thing less susceptible than all others of
exclusive property, it is the action of the thinking power called an
idea, which an individual may exclusively possess as long as he keeps
it to himself; but the moment it is divulged, it forces itself into the
possession of everyone, and the receiver cannot dispossess himself of
it. Its peculiar character, too, is that no one possesses the less,
because every other possesses the whole of it. He who receives an idea
from me, receives instruction himself without lessening mine; as he who
lights his taper at mine, receives light without darkening me. That
ideas should freely spread from one to another over the globe, for the
moral and mutual instruction of man, and improvement of his condition,
seems to have been peculiarly and benevolently designed by nature, when
she made them, like fire, expansible over all space, without lessening
their density at any point, and like the air in which we breathe, move,
and have our physical being, incapable of confinement or exclusive
appropriation. Inventions then cannot, in nature, be a subject of
- Thomas Jefferson