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A patent for an invention is the grant of a property right to the inventor, issued by the Patent and Trademark Office. The term of a new utility patent is 20 years from the date on which the application for the patent was filed in the United States or, in special cases, from the date an earlier related application was filed, subject to the payment of maintenance fees. US patent grants are effective only within the US, US territories, and US possessions. Most patents are UTILITY patents, that is they pertain to useful items, processes, compositions etc. Other types of patents are design patents and plant patents, both of which are discussed elsewhere on this website. The right conferred by the patent grant is, in the language of the statute and of the grant itself, 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. What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention. WHAT CAN BE PATENTED The patent law specifies the general field of subject matter that can be patented and the conditions under which a patent may be obtained. In the language of the statute, any person who "invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent," subject to the conditions and requirements of the law. The word "process" is defined by law as a process, act or method, and primarily includes industrial or technical processes. The term "machine" used in the statute needs no explanation. The term "manufacture" refers to articles which are made, and includes all manufactured articles. The term "composition of matter" relates to chemical compositions and may include mixtures of ingredients as well as new chemical compounds. Agricultural chemicals, and pharmaceuticals are compositions of matter. These classes of subject matter taken together include practically everything which is made by man and the processes for making products. The patent law specifies that the subject matter must be "useful." The term "useful" in this connection refers to the condition that the subject matter has a useful purpose and also includes operability, that is, a machine which will not operate to perform its intended purpose would not be called useful, and therefore would not be granted a patent. Interpretations of the statute by the courts have defined the limits of the filed of subject matter which can be patented, this it has been held that the laws of nature, physical phenomena and abstract ideas are not patentable subject matter. A patent cannot be obtained upon a mere idea or suggestion. The patent is granted upon the new machine, manufacture, etc., as has been said, and not upon the idea or suggestion of the new machine. A complete description of the actual machine or other subject matter for which a patent is sought is required. In order for an invention to be patentable it must be a new as defined in the patent law, which provides that an invention cannot be patented if: (a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the application for patent, or (b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country more than one year prior to the application for patent in the United States. If the invention has been described in a printed publication anywhere in the world, or if it has been in public use or on sale in this country before the date that the applicant made his/her invention, a patent cannot be obtained. If the invention has been described in a printed publication anywhere, or 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. In this connection it is immaterial when the invention was made, or whether the printed publication or public use was by the inventor himself/herself or by someone else. If the inventor describes the invention in a printed publication or uses the invention publicly, or placed it on sale, he/she must apply for a patent before one year has gone by, otherwise any right to a patent will be lost. Even if the subject matter sought to be patented is not exactly shown by the prior art, and involves one or more differences over the most nearly similar thing already known, a patent may still be refused if the differences would be obvious. The subject matter sought to be patented must be sufficiently different form what has been used or described before that it may be said to be nonobvious to a person having ordinary skill in the area of technology related to the invention. For example, the substitution of one material for another, or changes in size, or changes in color are ordinarily not of patentable significance. PATENT PERIOD, PATENT RIGHTS AND RETENTION OF RIGHTS The patent is issued to the inventor(s) in the name of the United States of America under the seal of the Patent and Trademark Office, and is either signed by the Commissioner of Patent and Trademarks or has his name written thereon and attested by an Office official. The patent contains a grant to the patentee, and a printed copy of the specification and drawing is annexed to the patent and forms a part of it. The grant confers "the right to exclude other from making, using, offering for sale or selling the invention throughout the United States or importing the invention into the United States" and its territories and possessions for which the term of the patent shall be 20 years from the date on which the application for the patent was filed in the United States or, if the application contains a specific reference to an earlier filed application from the date of the earliest such application was filed, and subject of maintenance fees as provided by law. The exact nature of the right conferred must be carefully distinguished
by the language of the claims from the rights of others, and the
key is in the words "right to exclude" in the phrase just
quoted. The patent does not grant the right to make, use, offer
for sale or sell or import the invention but only grants the right
of exclusion.. Any person is ordinarily free to make, use, offer
for sale or sell or import anything he/she pleases, and a grant
from the Government is not necessary. The patent only grants the
right to exclude others from making, using, offering for sale or
selling or importing the invention. Since the patent does not grant
the right to make, use, offer for sale, or sell, or import the invention,
the patentee's own right to do so is dependent upon the rights of
others and whatever general laws might be applicable. A patentee,
merely because he/she has received a patent for an invention, is
not thereby authorized to make, use, offer for sale, or sell, or
import the invention if doing so would violate any law. An inventor
of a new automobile who has obtained a patent thereon would not
be entitled to use the patent automobile in violation of the laws
of a State requiring a license, nor may a patentee sell an article,
the sale of which may be forbidden by a law, merely because a patent
has been obtained. Neither may a patentee make, use, offer for sale, or sell, or import his/her own invention if doing so would infringe the prior rights of others. A patentee may not violate the Federal antitrust laws, such as by resale price agreements or entering into combination in restraints of trade, or the pure food and drug laws, by virtue of having a patent. Ordinarily there is nothing which prohibits a patentee form making, using, offering for sale, or selling, or importing his/her own invention, unless he/she thereby infringes another's patent which is still in force. The term of the patent is 20 years from the date on which the application for the patent was filed in the United States or, if the application contains a specific reference to an earlier filed application from the date of the earliest such application was filed, and subject to maintenance fees as provided by law. A maintenance fee is due 3½, 7½, and 11½ years after the original grant for all patents issuing from the applications filed on and after December 12, 1980 to keep the patent from lapsing. The periodic maintenance fee , which arises every 3.5 years, must be paid at the stipulated times to maintain the patent in force. There are also procedures to pay late, but such right is subject to a surcharge. Some attorneys , such as our office, keep track when the fees are due and clients are reminded that the fee needs to be paid. A fee is charged for this service and for handling the paperwork to pay the periodic fee. After the patent has expired anyone may make, use, offer for sale or sell or import the invention without permission of the patentee, provided that matter covered by other unexpired patents is not used. The terms may be extended for certain pharmaceuticals and for certain circumstances provided by law. But such is a rarity. USE OF PATENTS The owner of a patent, may do nothing with it, and use the patent strictly for defensive purposes, to keep others from making or using the invention. He/she may exploit the patent, by making and selling the product, selling the patent to an interested third party for that party to have the right of ownership by a procedure called an assignment, or the owner may license a third party the right to use the patent, but still retain ownership. A license is by analogy, a rental, whereas an assignment is a sale of property. In many instances , at the time of grant, that is the date upon which the patent is issued, the actual value of the patent is zero dollars, but hopefully it is high in potential value. The actual value is directly related to the sale of the product process or composition etc, covered by the patent's claims. It is beyond the scope of this website to provide details about patent licensing. Since many factors influence the terms of a license. Licensing terms, vary with the nature of the item being licensed, the term of the license, whether an exclusive license is given or will others be offered a similar opportunity to make and sell the patented item etc. Sometimes licenses are given out based on geography, called a territorial license., or the license may be by industry. A rule of thumb licensee fee for many manufactured products is
a licensing royalty rate to be paid to the inventor- licensor by
the licensee of about 5 percent of the wholesale price of the product.
Sometimes more , sometimes less. Our office has handled both simple
and complex licenses over the years. We can also offer assistance
in the
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