General Information About Patents
What is a Patent?
A patent is a legal right granted for an invention by a government authority like the Indian patent office (IPO), United states patent and trademark office (USPTO), European patent office (EPO) and other patent offices in the world. This right allows the patent owner to prevent others from using the invention commercially. Others cannot make, use, sell or import the invention without a permission from the patent owner. In return, the invention will be publicly disclosed. This protection usually lasts for 20 years which is the life of a patent after which anyone can commercially use that invention. Patents are just like any other property which can be sold or licensed by the patent owner.
Patents Are Territorial
Patent rights are not global. They are territorial. That means, a patent is effective only in the country where it is granted. An Indian patent is effective only in India and a Chinese patent is effective only in China in accordance of that country’s law. Usually a patent owner protects the invention in that country where he wants to market his invention. So, a patent owner should apply for patent rights in all countries where he wants to protect his invention. The Patent Cooperation Treaty (PCT) is an international treaty that facilitates seeking patent protection for an invention simultaneously in multiple countries.
Inventor and Patent Owner
The inventor and the patent owner may not be the same always. The patent owner has the authority to file the patent application and enjoys all the rights of the patent after grant. By default, the patent office considers the inventor to be the owner of the patent. But, in most cases the ownership of the patent gets transferred to the employer due to their employment contract that assigns invention rights. In short, the inventor will be the patent owner if there is no such employee contract, else the employer will be the patent owner.
Types of patents
All inventions are protected by three types of patents. They are:
- Utility patents
- Design patents
- Plant patents.
Utility Patents: The most common type of patents are the utility patents. Utility patents protect the functional aspects of an invention. Novel machine, process, system, method or composition that has a useful function gets covered by an utility patent. Utility patent has a life of 20 years from the application filing date provided three maintenance fees are paid throughout its life. This makes utility patents expensive compared to design patents which require no maintenance fee.
Design Patents: Design patents protect the ornamental design, shape or aesthetic appearance of an invention. For example, the shape of a mobile display, the shape of a computer mouse, the appearance of an app icon etc. can be protected by a design patent. A design patent does not protect the functional aspect of any invention. If there is any functional aspect in the invention, an utility patent is required to protect it. Design patent has a life of 14 years from its grant date. It requires no maintenance fee and hence is cheaper compared to an utility patent.
Plant Patents: Plant patents are the least common type. Plant patents protect asexually reproduced new plant varieties. As per the USPTO, these include cultivated sports, mutants, hybrids, and newly found seedlings, other than a tuber propagated plant or a plant found in an uncultivated state. Plant patent has a life of 20 years from the application filing date and does not require any maintenance fee like design patents.
Requirements For Patentability
Under the US patent law, an invention should meet four requirements to be patentable. They are subject matter eligibility, novelty, non-obviousness and utility.
Subject matter eligibility: The invention must be from the subject matter defined in the patent law. Section 101 of the US patent law states this “process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” There are five categories defined by the USPTO
- Manufactured article
- Composition of matter
- New and useful improvement of the above
These categories are also called as statutory classes. If the invention falls under any of the above categories, then it will be an allowable subject matter and is eligible for a patent, provided the remaining three requirements are also met. Inventions that do not fall under the above categories are data structures, books, music, laws of nature, abstract ideas etc. These are not patentable.
Utility: Once the invention passes the subject matter eligibility test, it is then tested for its utility i.e. usefulness. The invention should have some functional usefulness. The invention cannot be just an abstract idea but it should be capable of actually being made and used in an industry. This is also called as Industrial applicability by the European patent office (EPO).
Novelty: Novelty is a very important requirement for patentability. An invention is considered novel if there are no public disclosures of it before one year of the application filing date. Public disclosures include any printed publication, sale of a product related to the invention, public use of the invention, any published patent etc. Such public disclosures are also called prior art. If an invention is different from the prior art, then it is novel.
Unobviousness: In addition to novelty, an invention should also be an unobvious improvement over the prior art. To determine this, the invention is compared to the prior art and then the differences will be analyzed to know whether they are obvious to a person having ordinary skill in the area of the invention. If the differences are obvious, then the invention is not patentable. Unobviousness is also called as inventive step. Determining the inventive step is one of the most difficult tasks of a patent examiner. If the patent examiner finds the invention in two or more previous patents, then the examiners considers the invention to be an obvious combination of the prior art and rejects the invention for lacking an inventive step.
I will discuss more on these in my subsequent blog posts.