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Patents
In the United States anyone regardless of age, national origin, or mental
competency may apply for a patent. Personal representatives may even apply
for patents in the name of dead or insane persons. About the only requirement
is that the person be the true inventor. In some other countries corporation
may apply for patents, but in the U.S. only real people may apply.
Patents have most of the characteristics of other types of personal property and
may be sold, licensed, or pledged. Patents rights are Federal and covered chiefly
in Title 35 of the USC.
Types of Patents
The statutes provide for three types of patents: design, plant, and utility.
Although many of the procedures and processes are similar this text focuses
chiefly upon utility patents. Care should be exercised in determining the
differences.
Under 35 USC 171 a design patent may be issued to a person who "...invents
any new, original, and ornamental design for an article of manufacture..."
The key element is the ornamental requirement. The design must be strictly
ornamental or aesthetic and have no utility or functional purpose. If the design
is functional a utility patent rather than a design patent would be the
appropriate avenue. A whiskey bottle in the shape of Elvis Presley would probably
be a proper subject for a design patent. A design patent would not be granted on
the handle of a knife, no matter how aesthetically pleasing it might be, if the
design also served to provide a better grip. The term of a design patent is 14
years from the date the patent is granted.
Under 35 USC 161 a plant patent may be issued to a person who invents or discovers
"...any distinct and new variety of plant, including cultivated sports,
mutants, hybrids, and newly found seedling, other than a tuber propagated plant or
a plant found in an uncultivated state..." provided the inventor is able to
asexually reproduce the plant. The term of a plant patent is generally 20 years
from the date the application is filed.
Most of the patents which people think of as "regular patents" are
utility patents. Under 35 USC 101 a utility patent may be issued to a person
who "...invents or discovers any new and useful process, machine, manufacture,
or composition of matter, or any new and useful improvement thereof..." Although
there are many other difficult requirement which must be met, most of the types of
patentable inventions are fairly obvious. "Manufacture" is usually considered to be an
article of manufacture or manufactured item. A glass lens probably wouldn't be considered
a machine or composition of matter, but it could be an article of manufacture.
It is important to note that new and useful improvements to the basic listing may
also be patentable. The term of a utility patent is generally 20 years from the
date the application is filed.
Utility Patents
The described invention must be operable and perform at least some minimal purpose which
is not illegal, immoral, or contrary to public policy. This requirement is not a problem
with most inventions, but the application for patent must indicate how it is used.
The application must also convince the PTO (United States Patent and Trademark Office)
that the invention is operable; that is, that it will work. Several variations of the
"perpetual motion" machine have been turned down by the patent office. In
extreme cases a working model of the invention may have to be displayed to the PTO as
proof of operability.
An entirely new composition of matter or chemical would be refused for a patent if no use
for the chemical were included in the patent application. Totally frivolous inventions
will be rejected by the PTO, but entertainment or amusement value is considered useful.
In most cases the PTO will consider a new drug which has not been approved by the Food
and Drug Administration as unsafe and, therefore, useless. In addition inventions whose
sole described purpose is illegal are considered useless.
Offensive Rights Granted by Patent Laws
A patent gives its owner the right to sue persons who make, use, or sell the invention
claimed in the patent. If the inventor wins the lawsuit the patent statues provide several
remedies:
a. An injunction will be issued preventing the infringer
from making, using, or selling the invention. Such an injunction extends to use or sale of
copies of the invention made prior to the issuance of the patent;
b. The court will award damages to compensate the patent owner for
economic loss caused by the infringement. In many cases the court will award damages equal
to what would have been a reasonable royalty on the use of the patent; and
c. If the patent owner can prove that the infringer acted
in bad faith, the court may also triple the amount of the damages and force the infringer to
pay the patent owner's attorney's fees. Most often such damages are awarded when the infringer
knew about the patent owner's invention and still infringed without reasonable excuse.
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