What Is a Patent?

Article I, Section 8 of the Constitution of the United States grants to Congress the power to promote the progress of science and the useful arts by giving an inventor certain rights for a limited period of time. Patent laws are codified in Title 35 of the United States Code.

Typically, the person who has patent rights in a new invention can stop others, for 20 years, from certain behaviors, including: 1) making the patented invention, 2) using the patented invention, 3) offering to sell the patented invention, 4) selling the patented invention, and 5) importing the patented invention.

There are limits to what can be patented. Protection is afforded for the invention or discovery of any new or useful process (meaning process, act, or method), machine, manufacture, or composition of matter (meaning chemical composition). Patent protection may be available in three categories: 1) utility patents, 2) design patents, and 3) plant patents. Even so, patents are not allowed for inventions related to atomic weapons as defined in the Atomic Energy Act of 1954. Some inventions may be subject to a Secrecy Order.

Patent Law is full of technicalities and lawyers consider, in their representation of patent clients, both the statutory language in Title 35 as well as the case law and common law where the exact meaning of legal terms are applied to a variety of fact patterns. What lawyers, or patent agents, do is help inventors get patents through patent prosecution, help inventors keep their patents when they are challenged before the United States Patent and Trademark Office or in the Federal Courts, and help inventors enforce their patent rights when others violate them.

Lawyers also represent clients who claim that a patent should not have been granted for a variety of reasons because, for example, the invention was not patentable or the claims were obvious, or too broad. An invention should be granted if the invention was not novel, not obvious, and meets publication requirements. The arguments for and against the grant of a patent are not only challenging, but they involve a variety of theories. One that is of particular importance at the present time is for a lawyer to refrain from inequitable conduct as reflected by a lack of candor with the USPTO.

Note that a patent cannot be granted for an idea or suggestion. Accordingly, the idea of a new type of bicycle is not patentable but building a new type of bicycle is.