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When can I get a
patent?
A patent can be obtained when an individual conceives a novel
idea. “Whoever 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 therefore.” However, the inventor must
disclose the invention in a manner sufficient to meet the legal
requirements. Thus, the specification of the patent application must
contain a written description of the invention. This description must
disclose the process of making and using the invention in such full,
clear, concise, and exact terms as to enable any person skilled in the
art to which it pertains, or which it is most nearly connected, to make
and use the same, and must set forth the best mode contemplated by the
inventor of carrying out his invention.
The term “useful” means that the subject matter of the patent has a
useful purpose. A process is a method of treatment of certain materials
to produce a given result. Certain software programs may be considered
patentable processes.
A machine “is a concrete thing, consisting of parts or of certain
devices and combinations of devices.” A manufacture is “the production
of articles for use from raw or prepared materials by giving these
materials new forms, qualities, properties or combinations, whether by
hand labor or by machinery.” A composition of matter is a composition of
two or more substances and may be in any state of matter (ie. gas,
liquid, powder, or solid).
Here are some examples of patentable ideas. Utility Patent - tools,
devices, machines, computer programs, games, processes, formulas,
internet, electronic, chemical and business methods, etc. Design Patent
- shapes of articles, dolls, characters, etc.
Courts have held that natural phenomena, laws of nature, and abstract
ideas are not patentable subject material. Patents cannot be obtained on
a mere idea or suggestion. As mentioned above, a complete description of
the invention that complies with 35 U.S.C. §112 must provided to the
U.S. PTO (i.e. adequate written description, enablement, and best
contemplated mode).
An invention cannot be patented if it 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 by the applicant for the
patent. Further, the invention cannot be patented if it was already
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 date of the application for patent in the United States.
An inventor cannot obtain a patent on an invention that he has
abandoned. He may not obtain a patent for the invention if it was first
patented or caused to be patented, or was the subject of an inventor's
certificate, by the applicant or his legal representatives or assigns in
a foreign country prior to the date of the application for patent in
this country on an application for patent or inventor’s certificate
filed more than twelve months before the filing of the application in
the United States.
The invention cannot be patented if it was described in a patent granted
on an application for patent by another filed in the United States
before the invention thereof by the applicant for patent. The patent
must be filed in the name of the inventor. The inventor cannot patent
the invention if the invention is made in this country by another who
had not abandoned, suppressed, or concealed it.
The invention cannot be an “obvious” variant of prior art or a
combination thereof. For example, the differences between the subject
matter sought to be patented and the prior art must be such that the
subject matter as a whole would not have been obvious to a person having
ordinary skill in the art to which the subject matter pertains, at the
time the invention was made. Otherwise, the invention can be considered
obvious and may not be subject to patent protection.
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