Patent Law Blog
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Patent Laws

Posted December 4, 2018

The Constitution of the United States gives Congress the power to enact laws relating to patents, in Article I, section 8, which reads "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." Under this power Congress has from time to time enacted various laws relating to patents. The first patent law was enacted in 1790. The patent laws underwent a general revision which was enacted July 19, 1952, and which came into effect January 1, 1953. It is codified in Title 35, United States Code. Additionally, on November 29, 1999, Congress enacted the American Inventors Protection Act of 1999 (AIPA), which further revised the patent laws.

The patent law specifies the subject matter for which a patent may be obtained and the conditions for patentability. The law establishes the United States Patent and Trademark Office to administer the law relating to the granting of patents and contains various other provisions relating to patents.

www.uspto.gov/patents


What Ideas can be Patented:

Posted November 29, 2018

The patent law specifies the general field of subject matter that can be patented and the conditions under which a patent may be obtained. In the language of the statute, any person who “invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent,” subject to the conditions and requirements of the law. The word “process” is defined by law as a process, act, or method, and primarily includes industrial or technical processes. The term “machine” used in the statute needs no explanation. The term “manufacture” refers to articles that are made, and includes all manufactured articles. The term “composition of matter” relates to chemical compositions and may include mixtures of ingredients as well as new chemical compounds. These classes of subject matter taken together include practically everything that is made by man and the processes for making the products.

The Atomic Energy Act of 1954 excludes the patenting of inventions useful solely in the utilization of special nuclear material or atomic energy in an atomic weapon. See 42 U.S.C. 2181(a). The patent law specifies that the subject matter must be “useful.” The term “useful” in this connection refers to the condition that the subject matter has a useful purpose and also includes operativeness, that is, a machine which will not operate to perform the intended purpose would not be called useful, and therefore would not be granted a patent.

Interpretations of the statute by the courts have defined the limits of the field of subject matter that can be patented, thus it has been held that the laws of nature, physical phenomena, and abstract ideas are not patentable subject matter. A patent cannot be obtained upon a mere idea or suggestion. The patent is granted upon the new machine, manufacture, etc., as has been said, and not upon the idea or suggestion of the new machine. A complete description of the actual machine or other subject matter for which a patent is sought is required.

www.uspto.gov/patents

 

Conditions For Obtaining A Patent:

Posted October 5, 2018

In order for an invention to be patentable it must be new as defined in the patent law, which provides that an invention cannot be patented if:

  • the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention or
  • the claimed invention was described in a patent issued [by the U.S.] or in an application for patent published or deemed published [by the U.S.], in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.

There are certain limited patent law exceptions to patent prohibitions (1) and (2) above. Notably, an exception may apply to a “disclosure made 1 year or less before the effective filing date of the claimed invention,” but only if “the disclosure was made by the inventor or joint inventor or by another who obtained the subject matter disclosed… from the inventor or a joint inventor.”

In patent prohibition (1), the term “otherwise available to the public” refers to other types of disclosures of the claimed invention such as, for example, an oral presentation at a scientific meeting, a demonstration at a trade show, a lecture or speech, a statement made on a radio talk show, a YouTube™ video, or a website or other on-line material.

Effective filing date of the claimed invention: This term appears in patent prohibitions (1) and (2). For a U.S. nonprovisional patent application that is the first application containing the claimed subject matter, the term “effective filing date of the claimed invention” means the actual filing date of the U.S. nonprovisional patent application. For a U.S. nonprovisional application that claims the benefit of a corresponding prior-filed U.S. provisional application, “effective filing date of the claimed invention” can be the filing date of the prior-filed provisional application provided the provisional application sufficiently describes the claimed invention. Similarly, for a U.S. nonprovisional application that is a continuation or division of a prior-filed U.S. nonprovisional application, “effective filing date of the claimed invention” can be the filing date of the prior filed nonprovisional application that sufficiently describes the claimed invention. Finally, “effective filing date of the claimed invention” may be the filing date of a prior-filed foreign patent application to which foreign priority is claimed provided the foreign patent application sufficiently describes the claimed invention.

www.uspto.gov/patents