THEORY

"A period of exclusivity is needed to induce an optimal level of innovation."

Inventors must be able to recoup the costs incurred in developing and bringing their inventions to market. Often the inventor does not have the money to build their project or process and needs to reveal their invention to third parties. Acquiring a patent affords protection from third parties attempting to steal an invention. Patent rights reward people who help further the public knowledge by providing the inventor with a limited type of monopoly on their invention. Theoretically this will spur others forward to improve upon the invention or to incorporate aspects of it into their own later inventions.

The rights that an inventor secures for this disclosure vest upon issuance of a patent. They do not exist during the “patent pending” phase. These rights granted by a patent are the rights to prevent other parties from making, using or selling the invention as claimed (or an essential part of it) until the expiration of an exclusive 20 year period from the date of filing the patent application. (Only 14 years for design patents.)

The threshold for obtaining a patent is higher than for a trademark or a copyright. Note that often inventors do not want to reveal their trade secrets such as the formulae for Coke. In this type of case an inventor may choose not to seek a patent. Without a patent these inventors lose Federal protection and must rely upon state laws to protect their rights with respect to illegal misappropriation but they are not held to a 20 year period of exclusive use and they may continue to reap the financial benefits of their discovery as long as they are able to maintain their “secret” from the public.

There are three types of patents - Utility, Design and Plant. The Utility and Plant patents may be applied for in either a provisional or non-provisional application. A provisional application acts to hold the right to apply for a patent for a one year period. Often in this one year period the inventor will attempt to secure funds to further his invention, or will test the market for success before spending the money on filing a larger, non-provisional application. Design patents last 17 years and all other patents 20 years.

Note that a patent is not a hunting license. It is not a reward for the search but rather compensation for its successful conclusion. Denying a patent may free or encourage others to find a use for or complete the invention.

A patent is always given initially to the inventor even if it is assigned. In the US the patent is granted to the first to invent. In most other countries, the patent is given to the first to file. Patents are harder to get than copyrights or trademarks. Patent law, like all intellectual property law is somewhat abstract. Fortunately, it is substantially proscribed in the Federal statutes.

What Can be Patented?

The idea of an invention cannot be patented - only the embodiment of that idea.

If ideas alone could be patented it would tie up the basic building blocks of knowledge. If there was a monopoly on these building blocks inventors would not have the freedom to develop new products and processes. There is a distinction between an idea and a process, a process is an application of an idea.

Patents are only granted to new and useful processes, machines, manufactured items, compositions of matter or any useful improvement thereof. Some examples of patentable products and processes are: chemical processes and intermediary formulae,
methods of doing business, software and computer programs, ornamental designs, algorithms and biotechnology.

Biotechnology patents are often good examples of how products and processes must be man-made, not nature’s handiwork. The combination of two existing things must make something new, not just a combination of two things. For example, combining 2 known bacteria is patentable but implanting a known gene in a known bacterium is not. Now we allow the patenting of parts of living things IE gene sequences - however this enters a gray area since synthetic gene sequences are close to the basic building blocks of nature. It is the distilled purified version of existing gene sequences that are useful.

What Can’t be Patented?

Anything that is not human made cannot be patented. A scientific truth is not patentable but a useful structure created with it is. Principles or laws of nature are not patentable. Naturally occurring substances are not patentable. even if they were previously unknown. Abstract ideas can’t be patented, only an embodiment of that idea (the invention). Legislative intent is to allow anything made by man to be patentable whether it is living or inanimate. Printed matter such as forms cannot be patented. Mere chemical formulas without function or purpose are not patentable. Mental steps are not patentable.

Manifestations of nature, natural forces, physical phenomenon, principals and abstract ideas are not patentable, but living organisms designed by man are. Mathematical formulations (algorithms) are not patentable but processes that use them are. It is a tough line to draw between ideas and embodiments. One reason for the intricacy of patent law is to ensure that patents don’t tie up every application of a principle in nature including applications that have not yet been invented.