Utility Patents: The Basics

• The most common types of patents granted by the PTO are utility patents for products that an inventor wishes to produce and sell. Utilities encompass a wide array of inventions, including any process, machine, composition of matter (such as a new pharmaceutical drug), article of manufacture or an improvement of an existing patented invention. In addition to meeting this criteria, the invention must also be novel, useful and nonobvious to a person with ordinary skill in the particular field of technology. The term "useful" needs no further definition; however, the requirement of novelty is often difficult for a new inventor to attain. Even if a product an inventor wishes to patent isn't exactly the same as a prior invention and only involves minute differences, the PTO can still refuse to issue a patent for it. For example, a product cannot differ in small features such as size or color if the differences between it and an existing invention are obvious.
  
  

History of Patent Law

• Patent law dates back to a provision in the U.S. Constitution, which gives Congress the power to "promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." The first patent law was enacted by the U.S. Congress in 1790, with one major revision in 1952, which is currently the codified Patent Act in Title 35.
  
  

Duration of a Patent

• Other forms of intellectual property enjoy protracted protection against infringement. A copyright endures for the life of the copyholder for his life plus another 70 years, while a registered trademark can endure forever, as long as the mark holder takes care to renew it. However, patent law specifies that a utility patent can last for only 20 years. The underlying principle behind limiting a patent's life is to prevent monopolization of a certain area of consumer sales by one inventor. Twenty years is adequate time for an inventor to make, market and sell a product, after which time the patent falls into public domain and other people can make and sell a similar product. While federal patent law offers no guarantees to inventors that their invention will be successful; nor does it confer on them any specific rights. It does, however, grant them the right of exclusion. As long as a person holds a patent, no other inventor can make or sell the same invention, even if the other inventor created it independently. Anyone who makes or sells a product that competes with a patented product can be sued for infringement.
  
  

Patents and the PTO

• The PTO is the governmental entity charged with approving all patent applications. The PTO thoroughly reviews all applications to make sure that a product can be described as some form of utility and that the invention is novel, nonobvious and useful. However, patent law requires patents to be very specific. A patent application must be sufficient enough to inform anyone who reads it how to make and use the product, or else the application will be rejected by the PTO. Additionally, the claims made by a new product cannot rely on those claimed in prior art. The majority of patents--around 95 percent--are initially rejected by the PTO because they either lack specificity or the claims they make are too similar to those found in other patented inventions. Most independent inventors seek the services of a patent attorney or patent agent who can draft and then redraft the patent application for the PTO's review and approval.
  
  

What Inventors Should Also Know

• Many inventors have ideas for new products that they're sure will be a hit in the consumer market. However, the most important step before patenting an invention is to determine if there is sufficient demand for the product. Independent inventors should ask themselves if their invention can replace another valuable consumer commodity, how much it will cost to manufacture (and if they have the financial capability to get it manufactured), how much it must cost to generate profit and how the product will be distributed and sold.