A patent is a legal concept and a category of intellectual property rights that constitutes a set of exclusive rights granted by a jurisdiction to an individual or any legal entity for an invention. These exclusive rights allow the patent owner to exclude others from making, using, and/or selling an invention or any likeness of such.
In the United States, the U.S. Patent and Trademark Office specifically defines a patent as the granting of a property right to an inventor for his or her invention or discovery for a certain period, thereby giving him or her the right to exclude others from making, using, selling, and importing similar inventions or discoveries without permission.
Legal foundations of patent law in the United States
Constitutional and statutory laws are the basic legal sources or foundations of patent law in the United States. Take note of the following:
- United States Constitution: Under Article I, Section 8, Clause 8 of the U.S. Constitution, otherwise known as the Patent Clause, the U.S. Congress has the power to give inventors limited exclusive rights to their inventions. Note that this clause is also known as the “Copyright and Patent Clause” and thus, also serves as the constitutional basis of copyright law in the U.S.
- United States Code: Title 35 of the U.S. Code codifies and outlines federal statues that collectively constitute patent law in the U.S. It describes the scope and limitations of patentability, the rights of patent owners, the conditions and remedies for patent infringement, relevant cooperation treaty, and the functions of the U.S. Patent and Trade Office.
Remember that there are other statutory laws that further define and substantiate patent law in the U.S. An example of these is the Leahy-Smith America Invents Act of 2011 that represents the most significant change in the U.S. patent system since the Patent Act o 1952. It contains provisions that switched the granting of patent from a first-to-invent system to first-inventor-to-file system. It also expands the definition of prior art, revised and expanded post-grant opposition procedures, and revised the functions of U.S. PTO.
General condition for patentability in the United States
According to the Title 35 of the U.S. Code, Section 101, the following is the general condition for what is patentable: 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.
Remember that the U.S. PTO is the government agency primarily responsible for issuing patents. Hence, an inventor or businessperson approaches this agency to try to secure a patent. The mere filing of the patent application, however, will not guarantee a patent. This also means that not all ideas are patentable. In this regard, the agency will assign a patent examiner to review the application and thereby, review the idea for its utility, novelty, non-obvious, and practical or feasible based on the descriptions contained in the patent application.
Difference between utility patent and design patent
There are two categories of patent in the U.S. These are utility patent and design patent. The US PTO particularly defines utility patent as a license conferring a right or title for the invention of a new and useful process, machine, manufacture, or composition of matter, or a new and useful improvement thereof.
Invention is at the heart of utility patent. An invention is any novel device, method, composition, or process that serves as a solution to existing technological or procedural problem or as a response to a particular demand or requirement.
On the other hand, a design patent grants legal protection granted to the ornamental design of a functional item. The U.S. government essentially grants design patent to a person who has invented any new, original, and ornamental design for an article of manufacture. The term “article of manufacture” includes manufactured items such as hand tools, light poles, machines and equipment, computer monitors, printers, electronic devices, and other tangible products, among others.
To understand further the difference between utility patent and design patent, remember that a design patent protects only the ornamental appearance of an article, and not its structure or utilitarian features. It is obtained for the aesthetically appealing features of a product. Hence, under the patent law in the U.S., ornamental appearance and utilitarian features are the two concepts that differentiate design patent from utility patent.
A design patent essentially protects the way an article looks while a utility patent protects the functionality or the way the article is used.
Specific conditions for design patent in the United States
Apart from the ornamental features, to qualify for a design patent, the aesthetic qualities or design must be new. This means that the design must be unique. It must be not obvious based on any previously existing design or combination of designs when viewed through the eyes of a hypothetical designer or artist.
The design must also satisfy ornamental requirements. Essentially, it is very important for the design to demonstrate artistic conception and aesthetic skill.
However, the following are not qualified for a design patent:
- If a design is utilitarian in nature as well as ornamental (such as computer mouse design or a standard keyboard layout which is more comfortable to use), a design patent will not protect the design. Such combination inventions (both ornamental and utilitarian) can only be protected by a utility patent. In other words, design patents provide meaningful protection to the design of the product, especially when the design was developed for creating an ornamental look to a product.
- If the design was used for a product because that designed worked better, or cost less to make, then a design patent will not protect that design of the product. Furthermore, design patents cannot be obtained for ornamental features that are not visible when the product is in use.
- If the design does not have any functional aesthetic appeal. Note that a design patent is obtained for the direct aesthetically appealing features of a product. One would have difficulty obtaining a design patent for a riveting machine, as it would generally not have aesthetic appeal.
Duration of patent in the United States
Under the U.S. patent law, the term or duration of utility patent is 20 years for applications filed on or after 8 June 1985. For applications filed before 8 June 1985, the duration is either 17 years from the date of issuance or 20 years from the filing date of the earliest U.S. or international application. Note that this duration is absolute granted that maintenance fees are paid on time.
Design patent has shorter duration. Design patents filed on or after 13 May 2015 have a term of 15 years from the date issuance of issuance or 14 years from the date of issuance for design patents filed before 13 May 2015.
EDITOR’S NOTE: This article is part of a series about intellectual property rights in the United States. (1) An introduction to intellectual property rights in the United States; (2) Understanding copyright law in the United States; (3) Facts about patent law in the United States; (4) The basics of trademark law in the United States; (5) An overview of trade dress law in the United States; (6) Background on trade secret law in the United States
