Congress allows this exclusive right, often considered a limited monopoly, to encourage the public disclosure of technical information and as an incentive for investing in their commercialization.
A patent is a document issued by the U.S. Patent and Trademark Office located in Arlington, Virginia, that grants to an inventor the legally enforceable right to exclude others from making, selling, distributing or using an invention in the U.S. territory. Congress allows this exclusive right, often considered a limited monopoly, to encourage the public disclosure of technical information and as an incentive for investing in their commercialization. Like other forms of property, the rights granted in the patent can be inherited, sold, rented, mortgaged and even taxed. When a patent expires or is held invalid, this exclusive right ceases. Congress has specified that a patent will be granted if the inventor files a timely application which adequately describes a novel and useful process, machine, manufacture or composition of matter, or any new and useful improvement thereof.
Types of PatentThere are three primary types of patent: Utility, Design, and Plant.
Utility PatentsA utility patent is the type of patent that is awarded to inventions that perform useful functions. Most of the patents that are issued are of this variety, and in fact most people who simply use the term “patent” are referring to a utility patent. Utility patents can be obtained for a thing, a method for making a thing, and/or a method for using a thing. Many times the news media will report that something that is quite old or well known has been recently patented. Almost always the old thing has not been patented, but rather a new and patentable method of making the thing or perhaps a new and patentable method for using the thing is what has been patented.
A utility patent, once granted, provides the owner of the patent the right to prevent others from making, using, selling and importing a product that is covered by the utility patent. This right extends for a period of time that is 20 years after the filing date of the patent application. Under some circumstances this time period may be extended. Extensions are rare, unless the patent covers a pharmaceutical product.
Design PatentsDesign patents can be a useful tool in your intellectual property arsenal, particularly when you are attempting to create overlapping protection, thereby developing a true intellectual property portfolio. Having said this, it is important to know the limitations of design patents. Design patents do NOT protect an idea or an invention, but rather only protect ornamental design of exactly what is pictured. They are VERY easy to get, which is why many invention and idea companies push them on people, who unsuspectingly think they have broad protection of their idea or invention. Many patent professionals will refer to a design patent as a picture patent. This is helpful when understanding the limits of the protection.
As with any general statement there are exceptions. The truth is that if you only have a design patent you will likely be dissatisfied with the strength of your protection. Design patents can, however, take on great strength when they are acquired in bulk.
Plant PatentsPatents to plants which are stable and reproduced by asexual reproduction, and not a potato or other edible tuber reproduced plant, are provided for by Title 35 United States Code, Section 161 which states:
Whoever invents or discovers and asexually reproduces any distinct and new variety of plant, including cultivated sports, mutants, hybrids, and newly found seedlings, other than a tuber propagated plant or a plant found in an uncultivated state, may obtain a patent therefore, subject to the conditions and requirements of title.
The subject matter of the application would be a plant which developed or discovered by applicant, and which has been found stable by asexual reproduction. To be patentable, it would also be required:
• That the plant was invented or discovered and, if discovered, that the discovery was made in a cultivated area.
• That the plant is not a plant which is excluded by statute, where the part of the plant used for asexual reproduction is not a tuber food part, as with potato or Jerusalem artichoke.
• That the person or persons filing the application are those who actually invented the claimed plant; i.e., discovered or developed and identified or isolated the plant, and asexually reproduced the plant.
• That the plant has not been sold or released in the United States of America more than one year prior to the date of the application.
• That the plant has not been enabled to the public, i.e., by description in a printed publication in this country more than one year before the application for patent with an offer to sale; or by release or sale of the plant more than one year prior to application for patent.
• The invention would not have been obvious to one skilled in the art at the time of invention by applicant.
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