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Origins of Intellectual Property Law: Patents

Posted by attorney Judith Silver

The United Kingdom Patent Office states that the first patent was issued in London in the fifteenth century. In the United States, the first patent was granted in 1790. Patent is used to protect methods, processes and inventions.

When Do You Get a Patent?

After inventing a work, the inventor must apply for and obtain a patent from the USPTO.

What’s Required to Get a Patent?

In order to patent something, you should have a patent attorney, licensed to practice before the Patent Office, assist you with the application. Upon receipt of your application, the Patent Office will examine your application to determine if it meets the legal requirements for obtaining a patent. The requirements are extremely complex. However, simplified, the requirements are that your invention is:

· Novel: this mean it must not be known or used by others in this country, or patented or described in a printed publication here or abroad, or in public use or on sale in this country more than one year prior to the application for patent;

· Non-obvious: this means it must not be obvious to a person having ordinary skill in the pertinent art as it existed when the invention was made;

· Useful: this means that it must have current, significant, beneficial use as process, machine, manufacture, composition of matter or improvements to one of these. According to the Patent Office, “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 which is made by man and the processes for making the products."

Certain kinds of software and Internet-related processes merit granting of patents.

What do You Have When You Hane a Patent and Is There Any Risk

If granted, a patent gives you a 20-year monopoly on selling, using, making or importing the invention into the United States. Your patent gives you the right to exclude others from making, using, offering for sale, selling or importing the invention in the United States.

You should be aware of two risks. First is that obtaining a patent can be expensive. You should consult your patent attorney to get a specific estimate, but the application process can take 3 to 5 years due to the understaffed and overburdened USPTO. The costs range from $10000 to $70000 depending on the time and complexity involved. Secondly, be aware that in exchange for the sales monopoly the patent gives you, your patent (i.e. how the invention works), becomes public information, once granted, so that others may learn from your ideas. This again reflects the Founding Fathers desire to give financial reward, in this case, the sales monopoly, and also foster further invention and free speech by disclosing the information to other inventors. Due to the disclosure result, many often opt not to seek patent rights so that they can keep their invention and ideas secret. Some items that can be patented can also be copyrighted or protected by trade secret law.

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