Patent is the exclusive right granted by the sovereign to an inventor of an invention of a product or process that vests him with the right to stop others from making, using, selling and importing the product in the relevant territory. The government grants exclusive monopoly rights for the exploitation of the product/process over a limited period of time, generally twenty years in exchange for the full disclosure of the invention. In United States, the role of granting patents is of the US Patent and Trademark Office (USPTO). Examination of applications and grant of patents to eligible applications and then preservation, classification and dissemination of patent information are some of the duties fulfilled by USPTO. Title 35 of the United State code covers the statutory provisions regarding the grant of patents.

A patent grant essentially is a negative right for it gives you the right to exclude other from using your invention. Since it is an Intellectual Property, once it is granted, you acquire the right to license your invention to others too.

A patent application in order to get a grant, must satisfy the elements of patentability. Non-patentable subject matter is one ground where the government bars granting of patent rights on some particular subject matters such as an application made for patenting abstract theory or mathematical calculation, etc. Another conditions of patentability are novelty, non-obviousness and industrially application. Prior art is all that knowledge that is pre-existing in the public domain on the date of patent filing. For an invention to be novel, it should not be available in the prior art.

Patent rights are also granted to products and processes which are the improved versions of pre-existing prior art. But, even such invention must have an inventive step in the manner that it is technically advanced than the pre-existing knowledge and has some economic significance and is non-obvious to a person ordinarily skilled in the field. This is called the test of enhanced efficacy. Industrial applicability of a patent requires the patent to have the same utility in the relevant field. The usefulness of the invention is thus a requisite for the determination of the commercial application and exploitation of the patent.

The patents are also classified based on their field of usages i.e. Utility, Design and Plant Variety patents. Utility patents are given to protect the functional attribute of an invention granted to anyone who innovates for technological advancements or discovers any machine for a period of twenty years calculated from the date of filing of the patent. Design patents are granted to inventive original designs for a term of fourteen years from the date of registration. United States practices a sui generis system for plant variety protection by granting patents to anyone who discovers a new distinct variety of plant by asexually reproducing them.

In contrast to the laws worldwide following first to file patent regime, US patent law subscribes a first-to-invent regime. However, it is quite necessary to file a patent as non-filing can lead you to suffer losses. As in the case of Pfaff v. Wells Electronics Inc., 525 U.S. 55 (1998), plaintiff who worked as an engineer for Texas Instruments, designed a computer chip which was put on sale by his company. A year later the plaintiff filed for patent which was granted after three years. By then the defendant company had infringed his patents and the plaintiff sued the defendants. The court held that an invention should be first filed for patent before it is put to any use or sale. Thus, the plaintiff couldn’t recover his damages.

The process of filing patents does not strictly involve hiring of an attorney but the strengths of filing a patent is affected by how well drafted your application is. A patent application involves both technical and legal aspects and thus involves the expertise of a practising professional. So, if your business has an emerging commercial potential, it is advisable to get a professional help.

For more information about patents contact our IP attorneys in Washington, DC