Frequently Asked Questions
What is a patent?
How long does patent protection last?
What about inventions that improve already patented products?
What does "Patent Pending" mean?
Describe the U.S. Patent and Trademark Office's review process.
How long does it take for a patent application to be processed?
What are the qualifications for a patent?
What is the history of the patent?
Are patent grants protected by the U.S. Constitution?
How do patent holders protect their rights?
How do I apply for a patent?
What is the NAS?
What is the NAS Report on the U.S. patent system?
Why is the NAS report important?
What does the NAS report recommend?
What is a patent?
A patent is a limited property right that the government offers to inventors in exchange for their agreement to share the details of their inventions with the public.
A patent provides the right to exclude others from making, using, selling, offering for sale, or importing the patented invention for the term of the patent, usually 20 years from the filing date. Like any other property right, it may be sold, licensed, mortgaged, assigned or transferred, given away, or simply abandoned.
In the United States, a patent is granted by the federal government through the U.S. Patent and Trademark Office (USPTO).
For additional information on patents, you may visit the USPTO Web site at www.uspto.gov/main/patents.htm.
How long does patent protection last?
The length of a patent grant varies by type. A utility or plant patent in force on June 8, 1995, is subject to either the 17 year term from grant or the 20 year term from earliest effective U.S. filing date, whichever is longer. At the end of that 20-year period, others may employ that invention without regard to the expired patent.
A design patent term lasts 14 years from patent grant.
What about inventions that improve already patented products?
Many inventions are improvements of prior inventions which may still be covered by someone else's patent. An inventor can patent an improvement to an already patented invention. However, to reproduce the entire product that person must obtain permission from the original patent holder.
For example If an inventor takes an existing patented mouse trap design, adds a new feature to make an improved mouse trap, and obtains a patent on the improvement, he or she can only legally build his or her improved mouse trap with permission from the patent holder of the original mouse trap.
On the other hand, the owner of the improved mouse trap could prohibit the original patent owner from using the improvement.
What does "Patent Pending" mean?
The terms "Patent Pending" and "Patent Applied For" are used to inform the public that an application for a patent has been filed. Patent protection does not start until the actual grant of a patent. Marking of an article as patented, when it is not, is illegal and subject to penalty.
Describe the U.S. Patent and Trademark Office's review process.
In deciding whether to approve a patent application, a USPTO examiner will consider whether the submitted application fully discloses and distinctly claims the invention. In addition, the application must disclose the "best mode," or preferred way, that the applicant knows to practice the invention. The examiner will also determine whether the invention itself fulfills certain substantive standards set by the patent statute.
Patent applications are examined for both technical and legal merit. Prior to filing a patent application, a search of existing patents can be conducted at the USPTO Patent Search Room or at a Patent and Trademark Depository Library in your area.
How long does it take for a patent application to be processed?
Currently, the average patent application wait is 24.6 months. Applications received in the USPTO are numbered in sequential order and the applicant will be informed within eight weeks of the application number and official filing date if filed in paper. If filed electronically, the application number is available within minutes.
What are the qualifications for a patent?
To be patentable, an invention must be useful, novel and non-obvious. The requirement of usefulness, or utility, is satisfied if the invention is operable and provides a tangible benefit. To be judged novel, the invention must not be fully anticipated by a prior patent, publication or other knowledge within the public domain. A non-obvious invention must not have been readily within the ordinary skills of a competent artisan at the time the invention was made.
A patent cannot be obtained on a mere idea or suggestion and, as mandated by the Patent Act of 1952, U.S. patent rights do not arise automatically. Inventors must prepare and submit applications to the USPTO if they wish to obtain patent protection. USPTO officials known as examiners then assess whether the application merits the award of a patent. The patent acquisition process is commonly known as "prosecution."
What is the history of the patent?
Evidence suggests a patent-like practice was used in ancient Greek cities, but the modern patent originated in Italy in 1474 when the Republic of Venice issued a proclamation mandating new and inventive devices already in use had to be made known to the Republic to secure the right to prevent others from copying the innovations.
Under the reign of King James I, England later followed with the Statute of Monopolies in 1623, which stated patents could only be granted for "projects of new invention." Under Queen Anne in the early 18th Century, English Court lawyers developed the requirement that a written description of the invention must be submitted.
These developments and others were available to Americans during and after the Colonial period and were utilized to form the foundation for modern U.S. patent system.
During the pre-Constitution years, several states adopted individual patent systems until the first Congress adopted a Patent Act (1790). The first patent was issued on July 31, 1790 and regarded the making of potash, often used to manufacture glass, soap or fertilizer.
Are patent grants protected by the U.S. Constitution?
The patent system is grounded in Article I, Section 8, Clause 8 of the U.S.
Constitution, which states that "The Congress Shall Have 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 . . . ."
How do patent holders protect their rights?
Patent rights are not self-enforcing. Patentees who wish to compel others to observe their rights must commence enforcement proceedings, which most commonly consist of litigation in the federal courts. Although issued patents enjoy a presumption of validity, accused infringers may assert that a patent is invalid or unenforceable on a number of grounds. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) possesses national jurisdiction over most patent appeals from the district courts. The U.S. Supreme Court enjoys discretionary authority to review cases decided by the Court of Appeals for the Federal Circuit.
Patents can generally only be enforced through civil lawsuit in the United States. Typically, the patent owner will seek monetary compensation for past infringement, and will seek an injunction prohibiting the defendant from engaging in future acts of infringement. In order to prove infringement, the patent owner must establish that the accused infringer practices all of the requirements of at least one of the claims of the patent (noting that in many jurisdictions the scope of the patent may not be limited to what is literally stated in the claims, for example due to the "doctrine of equivalents").
An important limitation on the ability of a patent owner to successfully assert his or her patent in civil litigation is the accused infringer's right to challenge the validity of that patent. Civil courts hearing patent cases can and often do declare patents invalid. The grounds on which a patent can be found invalid are set out in the relevant patent legislation.
How do I apply for a patent?
Inventors may apply for one of two types of patent applications: (1) A non-provisional application, which begins the examination process and may lead to a patent and (2) A provisional application, which establishes a filing date but does not begin the examination process.
Both types of patent applications can be filed either electronically using the Electronic Filing System (EFS): http://www.uspto.gov/ebc/efs/index.html (for provisional applications, effective January 1, 2002) or in writing to the Commissioner for Patents.
You can also request that the USPTO send informational materials providing a broad overview of the process of obtaining a United States patent, including general requirements and a listing of the depository libraries. For a listing of the information available, visit the USPTO Web site at: http://www.uspto.gov/web/offices/ac/ido/oeip/catalog/products/pp-a2n-1.htm.
What is the NAS?
The National Academy of Sciences (NAS) is a private, nonprofit, self-perpetuating society of distinguished scholars engaged in scientific and engineering research, dedicated to the furtherance of science and technology and to their use for the general welfare. Upon the authority of the charter granted to it by the Congress in 1863, the Academy has a mandate that requires it to advise the federal government on scientific and technical matters.
What is the NAS Report on the U.S. patent system?
Published in April 2004, the NAS Report is a four-year study with a final report titled, "A Patent System for the 21st Century." The report lays out six reasons to pay attention to the U.S. patent system along with seven criteria for evaluating the system and seven final recommendations to improve the system.
The reports authors include NAS experts Stephen A. Merrill, Richard C. Levin, and Mark B. Myers and the Committee on Intellectual Property Rights in the Knowledge-Based Economy Board on Science, Technology, and Economic Policy.
For more information on the report: http://www.nap.edu/catalog/10976.html#toc
Why is the NAS report important?
Coupled with the Congressional Research Service (CRS) report, it provides the basic framework for educating an individual on the current state of the U.S. patent system and the proposed legislation to tackle the ongoing and potential issues related to ensuring the system is effective in the 21st Century.
The NAS' report is, perhaps, the broadest, most objective report on the current state of the U.S. patent system. More than 150 people, ranging from renowned scholars and engineers to patent holders and corporations, assisted the NAS committee's deliberations in a variety of ways—conducting and reporting on research, speaking at conferences, presenting views at open meetings of the committee, and providing other valuable information through communications with staff. Although self-initiated, the study as a whole or activities within it attracted diverse support from government agencies, foundations, and corporations. The National Aeronautics and Space Administration sponsored the project as part of its program support of the Board on Science, Technology, and Economic Policy (STEP) from 1999 to 2003.
What does the NAS report recommend?
The seven recommendations outlined in the NAS report are as follows:
- Preserve an open-ended, unitary, flexible patent system.
- Reinvigorate the non-obviousness standard.
- Institute an Open Review procedure.
- Strengthen USPTO capabilities.
- Shield some research uses of patented inventions from liability for infringement.
- Modify or remove the subjective elements of litigation.
- Reduce redundancies and inconsistencies among national patent systems.
*Information compiled from various sources including the USPTO and NAS.
© 2007 The Coalition for 21st Century Patent Reform