The Patent Law Office of Robert J. Sayfie

Registered Patent Attorney and former Engineer

1200 Brickell Avenue, Suite 1950

Miami, FL 33131

Call 1-888-468-0444

What is a Patent or Trademark?

What Is a Patent?

A patent is the right to exclude others from (1) making, (2) using, (3) selling, (4) offering for sale, and (5) importing the claimed invention.  A patent is the grant of a property right from the United States Patent and Trademark Office to the inventor.  Generally, the term of a new patent is 20 years from the date on which the patent application was filed in the United States.  U.S. patent grants are effective only within the United States, U.S. territories, and U.S. possessions.  A patent grants the inventor-patentee the right to exclude others from making, using, offering for sale, selling, or importing the invention in the United States.  

There are three kinds of patents:

1) Utility patents may be granted to someone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof; a utility patent may initially be filed as either a regular patent application or a provisional patent application;

2) Design patents may be granted to someone who invents a new, original, and ornamental design for an article of manufacture; and

3) Plant patents may be granted to someone who invents or discovers and asexually reproduces any distinct and new variety of plant.
 
The patent laws specify the general field of subject matter that can be patented and the conditions under which a patent may be obtained.  The statute provides that 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 that 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. These classes of subject matter taken together include practically everything that is made by man and the processes for making the products. 

The patent laws also specify that the subject matter must be useful.  In other words, the invention must have a useful purpose and includes operativeness, that is, a machine that will not work or operate to perform the intended purpose would not be called useful, and therefore would not be granted a patent.

The courts have held that the laws of nature, physical phenomena, and abstract ideas are not patentable subject matter.

A patent cannot be obtained upon an idea or suggestion.  A complete description of how the invention is made and used is required. Further, the U.S. export regulations restrict information that can be exported or "outsourced." 

 

What is Patentable?

In order for an invention to be patentable, it must be new.  The 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 applicant 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 was known or used by others 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 places 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. The inventor must file on the date of public use or disclosure, however, in order to preserve patent rights in many foreign countries.

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 from 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 color for another, or changes in size, are ordinarily not patentable.

What Is a Trademark or Servicemark?

A trademark is a word, name, symbol, sound, or device that is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others. A servicemark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. The terms trademark and mark are commonly used to refer to both trademarks and servicemarks.

Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark. Trademarks that are used in interstate or foreign commerce may be registered with the USPTO.