I am often asked what is a patent? Well, a patent is essentially a grant by the U.S. Government of a monopoly for a limited period of time. The idea behind this is that the government wants to encourage invention and creativity while allowing an inventor/creator to reap the rewards of his/her/its research and development and give him/her/it a head start over the competition. Yet, the head start is limited eventually allowing others to copy the invention and, hopefully, build upon that invention to create something better.
There are three types of patents recognized by the United States Patent and Trademark Office (“USPTO”): utility, design, and plant. A utility patent is the catch-all type of patent and includes all new, nonobvious, useful inventions that fall into five categories: a process, a machine, a manufacture, a composition of matter, or an improvement of an existing idea. A design patent is a new and original design that ornaments a manufactured article (e.g. new shape for a bottle). A plant patent is the least frequently used type of patent and includes any asexually or sexually reproducible plants (i.e. flowers) that are both novel and nonobvious. The period of patent protection for utility and plant patents is 20 years after the application date. For a design patent it is 14 years after the issuance of the patent. Certain items are not patentable like products of nature, laws of nature, physical phenomena, scientific truths, and abstract ideas, printed forms, atomic weapons, and business methods and mental steps (unless they are useful and produces a tangible result).
In determining whether an invention is patentable, the USPTO will ask whether the invention is a new development in at least one or more of its constituent elements. That is to say, is it novel? A patent is not novel if it is known by others in the United States, used by other in the United States, patented by another in the United States or any other country, or is described in another’s printed publication in the United States or another country. I had a client who obtained a United States patent that was invalidated because the technology was described in a Japanese publication prior to the company obtaining the patent. This was a huge blow to my client who was asserting his patent rights against another company.
If the answer is that the innovation is not novel, then the USPTO asks whether the invention is nonobvious. In other words, would someone skilled in the field of the invention consider the invention to be an unexpected or surprising development? If the invention is both novel and nonobvious, then it may obtain patent protection.
If the invention meets these requirements, then it gains patent protection. The right conferred by the Patent Act is a negative right: it is the right to exclude other from making, using, offering to sell, selling, or importing the patented invention in the United States during the period of enforceability.
Obtaining a patent is not cheap and it takes some time—anywhere from 2-3 years. A new business should consult a patent attorney to determine whether seeking a patent registration is more advantageous to seeking trade secret protection for the same thing.
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