Patent Law is one of the most complex areas of the law because it involves the science underlying the invention. In fact, in order to practice before the United States Patent Trademark Office, attorneys and non-attorneys alike must first pass an examination referred to as the "Patent Bar."
Additionally, the process of obtaining a patent, which is commonly referred to as "Patent Prosecution," is a lengthy, arduous, and typically expensive process. This is because the purpose of the process is for the inventor to sufficiently prove that their invention meets all of the criteria discussed below, which can be incredibly nuanced.
Additionally, because patents aren't published until after they are granted, inventors won't know if someone filed for a patent on the same invention just months before.
The relevant section regarding patent protection appears in full below:
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 thereof, subject to the conditions and requirements of this title.
Here are the key components of the section. In very general terms, in order to secure a patent, your invention or discovery must meet ALL of the following criteria. It must be:
- Nonobvious, AND
- Patentable Subject Matter-- process, machine, manufacture, or composition of matter
The following things are not patentable:
- Laws of Nature
- Mental Processes
While these categories may seem straightforward, it is important to keep in mind that these definitions are directly impacted by the development of case law and practice. For example, the Federal Circuit recently ruled that isolated human DNA can be patented.
If you think that you have an invention that might meet the standards outlined above, contact a Patent Attorney to find out the next step in the process of obtaining your patent. The attorney can explain to you how the process works, what you can do to better your chances, and perhaps offer some insight into the likelihood of obtaining your patent.
An experienced Patent Attorney can also advise you regarding other ways of protecting your intellectual property. For example, did you know that the Coca Cola recipe is protected by trade secret, rather than a patent? This is because patents are published and their protection expires after a certain number of years, whereas trade secrets can last so long as they are not public knowledge.
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