What is a patent? Simply stated, a patent is the exclusive right to prevent others from making, using or selling the invention or things made using the invention. Surprising? See the following discussion.
Technically, a patent does NOT give you the right to make use or sell the products of your invention since your patent may be dominated by a patent of another person.
For example, if your invention is the combination of elements AB&C, it may be patentable. However, another person may have the patent for the combination A&B. You can’t make the combination AB&C without infringing the patent for A&B. Your patent is dominated by the A&B patent. (You will need to get a license from the A&B patent owner. See below.) Conversely, the owner of the A&B patent can not make the AB&C combination. That’s your patented invention and you can stop him or her.
A patent is, in essence, a monopoly granted by the Government for a period of twenty (20) years from the date the application for patent is filed. In exchange for this monopoly, the Government requires the patent owner to fully disclose the invention so that others skilled in the subject matter of the patent can duplicate the results achieved by the patented invention, i.e., teach enablement (Section 112). Thus, at the conclusion of the 20-year term, the patented technology or apparatus becomes available to everyone.
Sale, Assignment and License
A patent is a right granted by the US Government to the inventor or the entity to whom the inventor has assigned his/her rights. Like other forms of property such as real property (e.g. land and buildings), and personal property (e.g. autos, tools, furniture), intellectual property (e.g. patents, copyrights, trade secrets or trademarks) may bought and sold. The transfer of the entire bundle of rights created by a patent is termed an “assignment”. An assignment must be in writing and recorded in the United States Patent and Trademark Office (USPTO). Further the owner of the intellectual property may choose to convey only a portion of the ownership rights. Conveying only limited rights in intellectual property is termed a “license” and may be comparable to the owner of a building leasing it to a tenant for a period of time. (Using the lease example requires the understanding that the lease conveys the right of possession to the building while the owner retains ownership and right to retake possession at the expiration of the lease.)
When does an idea become patentable?
Although there are many requirements that must be met for a development to constitute a patentable invention, the most fundamental requirements are the development be novel (Section 102), useful, and non-obvious (Section 103) to a person skilled in the technology or art. It is not necessary that there be any “flash” of genius. A patentable invention is most often the result of dogged or persistent trial and error effort directed to overcome an identified problem or achieve a known goal. The problem or goal may have been long known by the entire world, e.g., the inability of man to fly in the air. The solution becomes an invention for purposes of patent law only after the inventor (i) conceives of the solution to overcome the problem or achieving the goal and (ii) the solution is reduced to practice.
Using the airplane example, conception of the idea may have occurred when the inventors envisioned a light, self-propelled apparatus using a large, curved or arched wing structure to create lift. Reduction to practice occurred when it was demonstrated that an apparatus, consisting of a light wooden framework covered by cloth with large, lightweight arched wings, and powered by a gasoline engine turning two large wooden propellers, could be built and carry a man through the air.
Although the demonstration of a working model is the common method of achieving reduction to practice, the drafting of a proper and thorough patent application can also constitute reduction to practice since, as stated above, the patent application must disclose the invention sufficiently that it can be understood and duplicated by others familiar with the technology or art. You are not permitted to hold back the secret that makes the invention zing.
Copyright David McEwing, 2019