Patent Novelty

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 What Is a Patent?

Inventors of anything will want to protect those inventions from any type of unauthorized use or distribution. Under federal patent laws, patents are provided to inventors in order to exclude other parties from “making, using, offering for sale or selling the invention” in the United States.

Patents typically last for 20 years. A patent may be obtained for any type of invention in any field of technology.

Nations that are members of the World Trade Organization (WTO) are supposed to recognize and enforce any legal patent. This is because patents are part of international agreements with the WTO.

What Types of Inventions can be Patented?

Generally, in order for an individual to obtain a patent from the United States Patent and Trademark Office (USPTO), an invention must be:

  • New;
  • Unique; and
  • Generally unobvious.

There are different categories of patents that may be available, depending on what an individual wishes to patent, including:

  • Utility patents: In order for a patent to qualify as a utility patent, the invention must be moderately useful. An invention is, in general, required to be:
    • a method or a process that has a concrete result;
    • a machine;
    • a chemical or biological composition of matter; or
    • an invention improvement;
  • Design patents: Generally, the design to be patented must be:
    • novel;
    • non-obvious; and
    • nonfunctional;
  • Plant patents: A plant that is created may be patented. The plant must be novel and non-obvious.

There are numerous types of things that cannot be patented, including:

  • Naturally occurring substances;
  • Laws of nature;
  • Ideas;
  • Calculation methods; and
  • Other things.

How Can I Prove My Invention Is Novel?

In order for an individual to prove that their invention is novel, they must be able to show that:

  • The invention was not already known to the public when the individual invented it;
  • The individual was the first to invent it, and
  • They came up with the idea themselves.

How Do I Know if My Invention was Known to the Public?

If there is a product or publication that is in the prior art, or various sources that are available to the public, which has all the elements of a new invention, the invention will be considered to be known to the public and, therefore, not novel.

Even if an individual had no idea that the other product or publication existed, they will not be able to patent their invention. Absolutely novelty, however, is not required.

The important issue is whether the invention is public knowledge. For example, if an individual wrote a paper which anticipated an invention before it was invented but never published that paper, it would not bar the inventor from obtaining a patent.

If Someone Else Invents the Same Invention as Me, Who has Priority?

If an individual invents the same invention as another individual, priority will be based on who is the first to invent. If a dispute arises between the two inventors over who has priority, the first inventor to reduce their invention to practice by making and testing it or to file for a patent application will have priority, unless:

  • They abandoned, suppressed, or concealed the invention by delaying for an unreasonable period of time; or
  • The other inventor conceived of the invention first and worked with reasonable diligence to make and patent it.

If Someone Gives Me Ideas for an Invention, Can I Still Get a Patent?

This will depend on the facts and circumstances of the issue. Not every suggestion or idea that an individual receives will bar them from obtaining a patent.

The individual will only be barred if another individual suggests an invention and tells them how to make it. Even if an individual freely discloses their idea but has no intention to patent it, listeners would not be able to obtain a patent for the invention.

How Can I Get a Patent for My Invention?

As noted above, the USPTO processes all applications for patents and makes all determinations related to patents. An inventor must submit an application to the USPTO that includes specific drawings and a plan of the proposed invention.

A patent application also requires the inventor to include a fee payment. The plans that are included in the application for an invention must follow a rigid and specific form.

Once a patent application is reviewed, the USPTO will typically question the application regarding any issues the office noticed. It is important to note that, as of September 2011, an individual who first files a patent will receive exclusive rights.

Before September 2011, patent protections were provided to the individual who first invented the technology or product.

Can I Transfer My Patent to a Family Member or Business Partner?

Yes, an individual can transfer a patent to a family member or to a business partner. Federal codes allow individuals to treat their patent similar to other types of property.

This means that an individual may do the following with their patent:

  • Selling;
  • Licensing;
  • Mortgaging;
  • Transferring; and
  • Abandoning.

What Could Make My Patent Invalid?

Patents may be deemed to be invalid for numerous reasons. Typically, a patent will be deemed to be invalid during a patent infringement case if the accused infringer, or the defendant, can show that the patent was invalid.

There are also other reasons a patent may be found to be invalid, including:

  • The invention was not actually patentable: If evidence is presented that shows the invention lacked the requisite utility, novelty, or non-obviousness that was required for the patent, the USPTO can declare the patent invalid;
  • An individual obtained the patent fraudulently: Even if an invention was patentable, if an individual is able to prove that the patent was received through deception of the USPTO, the patent may be declared invalid; and
  • The patent was used to commit illegal action: If an individual uses a patent to engage in illegal conduct, the USPTO may declare the patent invalid.

What Are Maintenance Fees and When Do I Have to Pay Them?

An inventor is required to pay maintenance fees to the USPTO in order to keep their patent in force. These maintenance fees are due a certain time intervals after the patent is granted, including:

  • 3.5 years;
  • 7.5 years; and
  • 11.5 years.

If an inventor misses one of those deadlines, they will have a 6 month grace period to pay the required maintenance fees. In order to keep their patent in force, the patent holder will also be required to pay a penalty surcharge.

If an inventor does not pay these required maintenance fees, their patent will expire.

What Is Patent Infringement?

Patent infringement arises when a party uses another party’s invention or an invention that has similar elements. To demonstrate patent infringement has occurred, a patent owner is required to compare the elements and claims of the original patent with the elements of the device or invention that is suspected to be infringing.

If these elements and claims match, patent infringement has occurred. An inventor can enforce their patent in federal court.

Would I Benefit from Hiring a Patent Attorney?

If you are considering obtaining a patent, it may be helpful to hire a US patent lawyer. The patent process is very complex.

Your lawyer can assist you throughout the process and ensure your application is completed properly and fully. An experienced intellectual property attorney can help you determine if your invention meets the standards of novelty that are necessary to obtain a patent.

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