Patent
From DDL Wiki
A patent is a type of intellectual property that provides a set of exclusive rights granted by a state to a patentee (the inventor or assignee) for a fixed period of time in exchange for the regulated, public disclosure of certain details of a device, method, process or composition of matter (substance) (known as an invention) which is new, inventive, and useful or industrially applicable.
There are three classes of patents
- Utility patents: For a "useful, novel and nonobvious" invention.
- Design patents: For ornamental design only.
- Plant patents: Horticulture engineering.
The utility patent is most relevant for the DDWiki audience, and this article focuses on utility patents. This article does not provide legal advice - any party interested in applying for a patent should seek proper legal council.
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Motivation
The motivation of patent law is to provide incentive for people to create new inventions by providing a mechanism by which the inventor can recoup costs of high risk research & development and startup activities and earn profit from the work of invention. Four rationale for the patent system are:
- Public Disclosure: Patents facilitate and encourage disclosure of innovations into the public domain for the common good. If inventors did not have the legal protection of patents, they might prefer or tend to keep their inventions secret. Awarding patents generally makes the details of new technology publicly available, for exploitation by anyone after the patent expires, or for further improvement by other inventors. Furthermore, when a patent's term has expired, the public record ensures that the patentee's idea is not lost to humanity.
- Encourage R&D: Patents provide incentives for economically efficient research and development (R&D). Many large modern corporations have annual R&D budgets of hundreds of millions or even billions of dollars. Without patents, R&D spending would be significantly less or eliminated altogether, limiting the possibility of technological advances or breakthroughs. Corporations would be much more conservative about the R&D investments they made, as third parties would be free to exploit any developments. This second justification is closely related to the basic idea underlying traditional property rights: why build a house if another person could freely occupy it?
- Encourage Commercialization: In many industries, once an invention exists, the cost of commercialization (testing, tooling up a factory, developing a market, etc.) is far more than the initial conception cost. Unless there is some way to prevent copies from competing at the marginal cost of production, companies will not make the investment.
- Encourage Improvements: Patent rights create an incentive for companies to develop workarounds to patented inventions, thereby creating improved or alternative technologies that might not otherwise have been developed.
Utility patent
Patents are for inventions, not "ideas". To qualify for a utility patent, the invention must be
- Useful: Invention must be useful to someone in some context
- Novel: Invention must not be prior art in public domainThis also means that the invention itself must not appear in the public domain before patenting (see provisional patent.
- Nonobvious: If the invention would be clearly evident to those with "ordinary skill in the art" who faced the same problem as the inventor, then the invention is considered obvious and not patentable. Of course, this can be the source of some argument.
Prior art
Prior art refers to any product or invention that is obvious or evident from existing products, publications, or prior patents. Existing patents are considered part of the prior art even if the product described has never been produced. The U.S. Patent and Trademark Office has a searchable database of existing patents, and Google has a new patent search interface.
Provisional patents
In the U.S., a patent application must be filed within one year of the first public disclosure of an invention. It is also possible to file a provisional patent, which is relatively easy and inexpensive. This gives the inventor a full year of "patent pending" time where the product may appear in the public domain while the inventor decides whether or not to file a full patent, which is more costly and time consuming.
Most international patent systems consider the invention "prior art" as soon as it is in the public domain - provisional patent or not.
