In the beginning…
Thomas Jefferson (1743-1826), the author of the Declaration of Independence and this nation’s third President, was also the founder of the United States Patent Office and its first patent examiner. During his tenure, Jefferson personally assumed the majority of the responsibility of running the U.S. Patent Office, to the extent that it is now legend in the Patent Office that he stored conferred patents in a shoe box under his bed.
Nuts and Bolts…
A patent for an invention is the grant of a property right to the inventor, issued by the United States Patent and Trademark Office. The right conferred by the patent is, “the right to exclude others from making, using, offering for sale, or selling” the invention in the United States or “importing” the invention into the United States
The compromise articulated by the patent law requires the patentee to make full public disclosure of the invention, in exchange for the exclusive right to prevent others from making, using, or selling the patented invention during the term of the patent absent an express or implied license from the patent holder.
There are three (3) types of patents:
- Utility patents are granted on inventions or discoveries of any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof;
- Design patents are granted on inventions for a new, original and ornamental design for an article of manufacture; and
- Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.
In order for an invention to be patented, it must be novel, unobvious and useful. If the invention has been described in a printed publication anywhere in the world, or if it was known or used by others in this country before the date that the applicant made his/her invention, a patent cannot be obtained.
If the invention has been in public use or on sale in this country more than one year before the date on which an application for patent is filed in this country, a patent cannot be obtained.
PATENT INFRINGEMENT
The unauthorized making, using, offering for sale or selling of a patented invention within the United States or its territories or the importing into the United States of any patented invention during the term of the patent constitutes infringement.
A patentee may sue in federal court and request an injunction to prevent the continuation of the infringement as well as an award of damages.
In such a lawsuit, the defendant may attempt to invalidate the patent or otherwise defend the suit by claiming that the alleged conduct does not in fact constitute infringement.
PATENT MARKING AND PATENT PENDING
A patentee is required to mark the word “Patent” and the number of the patent on patented articles. If the patentee fails to do so, then the patentee may forfeit damages from an infringer.
Conversely, the marking of an article as patented when it is not in fact patented is against the law and subjects the offender to a penalty.
The term “Patent Pending” is used to indicate that an application for patent has been filed with the USPTO.
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