What is a Patent? (United States)
A patent is a temporary property right which is granted by the United States government to “promote the Progress of Science and the Useful Arts.” (see Article 1, Section 8, Clause 8 of the United States Constitution which provides Congress with the power “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”)
The Supreme Court stated in Bonito Boats v. Thunder Craft Boats (1989) that:
“The Patent Clause itself reflects a balance between the need to encourage innovation and the avoidance of monopolies which stifle competition without any concomitant advance in the ‘Progress of Science and useful Arts.’ As we have noted in the past, the Clause contains both a grant of power and certain limitations upon the exercise of that power. Congress may not create patent monopolies of unlimited duration, nor may it
‘authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available.’ Graham v. John Deere Co. of Kansas City, 383 U. S. 1, 383 U. S. 6 (1966).”
There are several different types of patents issued by the United States Patent and Trademark Office (USPTO), including: utility patents, design patents, and plant patents. (see USPTO – A Guide to Filing a Utility Patent Application). It should be noted that utility patents cover about 90% of the patent documents issued by the USPTO. (see USPTO – Types of Patents)
Patentable Subject Matter
The primary statute which defines what is patentable (35 USC 101 – Inventions Patentable) states that: “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 therefor, subject to the conditions and requirements of this title.”
Exclusionary Right
A patent provides the Patentee with “the right to exclude others from making, using or selling the invention throughout the United States.” It should be noted that although a patent provides a “right to exclude,” it does not grant a right to make, use, or sell the invention.
As patent rights are jurisdictional, a patent granted by the USPTO is only effective within the United States and its Territories/Possessions. Accordingly, if an Applicant wants to obtain legal rights outside of the United States, they must file for patent protection within each jurisdiction that protection is desired. However, it should be noted that the USPTO document entitled “Nature of Patent and Patent Rights” states that:
“The exact nature of the right conferred must be carefully distinguished, 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 exclusive nature of the right. 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 …Ordinarily there is nothing which prohibits a patentee from 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.”
In view of the foregoing, it should be noted that even though a patent has been obtained, another may hold a patent over an aspect of the invention (e.g., a specific use) which would in essence restrict the legal rights of a Patentee in some regard.
Limited Exclusionary Period
An Inventor is provided with a limited exclusionary period in exchange for a disclosure of their work in “full, clear, concise, and exact terms” (see 35 USC 112).
The term of a utility patent is usually 20 years (“20 year term”) from a new patent applications filing date in the United States assuming: 1) an earlier related application was not filed; 2) the patent application was filed after June 8, 1995; and 3) the required patent maintenance fees have been paid. It should be noted that the patent term may be different for patent applications which do not satisfy the aforementioned conditions. (see MPEP 2701 – Patent Term)
Upon expiration, anyone is free to practice the claimed subject matter of the expired patent. Similarly, subject matter which is described in a patent application but not claimed is likewise “dedicated to the public.”
USPTO Resources
USPTO: What are Patents, Trademarks, Servicemarks, and Copyrights.