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Patent Law Fundamentals (Demo)
[Excerpt from Patent Law Fundamentals]

Patent Law Fundamentals | Trade Secret Module | Patent Awakenings Situational Analysis
 
 
1. Patent Law Overview - a patent is a government grant of a right to exclude others from manufacturing, using, selling or importing the subject matter of an invention. There are three types of patents: utility patents; design patent and plant patents. The following outline begins with a discussion of patentable subject matter from the perspective of an individual who is interested in determining how or whether to obtain a patent. The second portion of the outline deals with patent infringement and matters of importance to individuals enforcing patent rights.
 
 Very Important! - A very important point to grasp from the outset is that a patent owner does not obtain the right to use his patented invention; instead, a patent grants the owner a right to "exclude" others from practicing the patented invention. (See example below).
    Comment - The right to "exclude others" is a basic property law right. Just as the owners of "real property" (i.e., land) have a right to exclude trespassers, the owners of "intellectual property" (e.g., patents) have the right to exclude infringers from patented inventions.
 
    Example - Albert invents a pencil. Albert obtains a patent on a writing instrument comprising a wooden shaft and a graphite core.  Subsequently, Jonas invents an improved pencil, comprising a wooden shaft and a graphite core, with an eraser attached.  Jonas obtains a patent on his improved pencil.
     
     Jonas's patent enables him to prevent all others (including Albert) from manufacturing, using, selling, or importing a pencil comprising a wooden shaft, a graphite core and an eraser.  However, Jonas cannot manufacture, use, sell, or import his patented pencil without violating Albert's patent because the improved pencil includes a wooden shaft and a graphite core, Jonas would infringe Albert's patent (see patent infringement).  Note well that Jonas's patent on the improved pencil is irrelevant to the fact that, if he manufactures his improved pencil, he will infringe Albert's patent.
     
     Therefore, unless Albert and Jonas negotiate an agreement, only Albert will have the right to practice his own invention (i.e., a pencil having a wooden shaft and a graphite core).  And neither Albert nor Jonas can practice Jonas's invention.  Pause and understand this most basic of concepts -- " a patent gives the patentee a right to exclude others from practicing his invention, and does not give the patentee a right to practice the patented invention" --.
     
3. Types of Patents - there are three different types of patents (i.e., utility patents, design patents and plant patents) to cover the three different areas of invention that are recognized by the Federal Laws of the United States.  A vast majority of this outline discusses issues relevant to utility patents.  Design patents and plant patents are taken up below with reference to the discussion of utility patents.
 
 Utility patents are the type of patent that most people think of when they hear of patents.  Utility patents are issued on "useful" apparatuses or methods.  Utility patents are distinguished from design patents.  Design patents are granted on "ornamental" designs, and they are not required to be useful.1
 
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    A) Utility patents - a utility patent gives its owner a right to exclude others from the manufacture, use, sale and importation of her patented, "useful" invention.
     
     A utility patent is often viewed as a "contract with the government."  That is, in consideration of the inventor's complete disclosure of the invention, the government grants the inventor the right to exclude others from exploiting his invention.  It is commonly said that a patent grants the owner "monopoly power".
     
     The subject matter of inventions which can be patented is very broad and getting broader.  In the recent past computer programs, genetically-altered living matter, and business methods have been added to the long list of patentable subject matter.2
     
    Comment - The reasons for obtaining a patent vary widely, ranging from the perceived prestige associated with receiving a patent, to a desire to impress consumers, to a serious intent to enforce the patent and deter would-be competitors.3
     
     I)  What constitutes a Patentable Invention? - to be patentable, an invention must be useful, novel, and non-obvious.  Usefulness is a relatively easy concept to grasp.  Novelty is one of the more complex concepts of patent law, involving numerous legally technical concepts.  Obviousness involves all of the numerous legally technical concepts of "novelty", plus it involves a subjective standard that requires some practical legal experience to understand.4
     
      (a) Novelty - the second of the three requirements of patentability is "novelty".  Novelty is the aspect of patentability that requires the invention be unknown in the prior art (i.e., the invention must be new).  An invention is not novel if all of the "elements" contained in the invention can be found in a single prior art reference.
       
       There are a number of types of prior art that result in the loss of novelty.  Note well that some prior art results from activity by the Applicant/Inventor, himself, and some results from the activity of others.
       
       The types of activities that result in a loss of novelty can be broken down into two categories, those activities that occur prior to the inventor filing a patent application (see (ii), (iii), (iv), (v), below), and those activities that occur prior to invention (see (i), (vii), below).
     
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Patent Law Fundamentals | Trade Secret Module | Patent Awakenings Situational Analysis

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