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    Patent Protection for Product Ideas or Inventions, Part 1
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    Category: Weekly Thoughts

    I. What is a patent?

    A United States Patent is essentially a "grant of rights" for a limited period.In layman's terms, it is a contract in which the United States government expressly permits an individual or company to monopolize a particular concept for a limited time.

    Typically, our government frowns upon any type of monopolization in commerce, due to the belief that monopolization hinders free trade and competition, degrading our economy.A good example is the forced break-up of Bell Telephone some years ago into the many regional phone companies.The government, in particular the Justice Department (the governmental agency which prosecutes monopoly or "antitrust" violations), believed that Bell Telephone was an unfair monopoly and forced it to relinquish its monopoly powers over the telephone industry.

    Why, then, would the government permit a monopoly in the form of a patent?The government makes an exception to encourage inventors to come forward with their creations.In doing so, the government actually promotes advancements in science and technology.

    First of all, it should be clear to you just how a patent acts as a "monopoly."A patent permits the owner of the patent to prevent anyone else from producing the product or using the process covered by the patent.Think of Thomas Edison and his most famous patented invention, the light bulb.With his patent for the light bulb, Thomas Edison could prevent any other person or company from producing, using or selling light bulbs without his permission.Essentially, no one could compete with him in the light bulb business, and hence he possessed a monopoly.

    However, in order to receive his monopoly, Thomas Edison had to give something in return. He needed to fully "disclose" his invention to the public.

    To obtain a United States Patent, an inventor must fully disclose what the invention is, how it operates, and the best way known by the inventor to make it.It is this disclosure to the public which entitles the inventor to a monopoly.The logic for doing this is that by promising inventors a monopoly in return for their disclosures to the public, inventors will continually

    strive to develop new technologies and disclose them to the public.Providing them with the monopoly allows them to profit financially from the invention.Without this "tradeoff," there would be few incentives to develop new technologies, because without a patent monopoly an inventor's hard work would bring him no financial reward.Fearing that their invention would be stolen when they attempt to commercialize it, the inventor might never tell a soul about their invention, and the public would never benefit.

    The grant of rights under a patent lasts for a limited period.Utility patents expire 20 years after they are filed.If this was not the case, and patent monopolies lasted indefinitely, there would be serious consequences.For example, if Thomas Edison still held an in-force patent for the light bulb, we would probably need to pay about $300 to buy a light bulb today.Without competition, there would be little incentive for Edison to improve upon his light bulb.Instead, once the Edison light bulb patent expired, everyone was free to manufacture light bulbs, and many companies did.The vigorous competition to do just that after expiration of the Edison patent resulted in better quality, lower costing light bulbs.

    II. Types of patents

    There are essentially three types of patents which you should be aware of -- utility patents, design patents, and provisional patent applications.

    A utility patent applies to inventions which have a "functional" aspect (in other words, the invention accomplishes a utilitarian result -- it actually "does" something).In other words, the thing which is different or "special" about the invention must be for a functional purpose.To be eligible for utility patent protection, an invention must also fall within at least one of the following "statutory categories" as required under 35 USC 101. Keep in mind that just about any physical, functional invention will fall into at least one of these categories, so you need not be concerned with which category best describes your invention.

    A) Machine: think of a "machine" as something which accomplishes a task due to the interaction of its physical parts, such as a can opener, an automobile engine, a fax machine, etc.It is the combination and interconnection of these physical parts with which we are concerned and which are protected by the patent.

    B) Article of manufacture: "articles of manufacture" should be thought of as things which accomplish a task just like a machine, but without the interaction of various physical parts.While articles of manufacture and machines may seem to be similar in many instances, you can distinguish the two by thinking of articles of manufacture as more simplistic things which typically have no moving parts. A paper clip, for example is an article of manufacture.It accomplishes a task (holding papers together), but is clearly not a "machine" since it is a simple device which does not rely on the interaction of various parts.

    C) Process: a way of doing something through one or more steps, each step interacting in some way with a physical element, is known as a "process." A process can be a new method of manufacturing a known product or can even be a new use for a known product. Board games are typically protected as a process.

    D) Composition of matter: typically chemical compositions such as pharmaceuticals, mixtures, or compounds such as soap, concrete, paint, plastic, and the like can be patented as "compositions of matter." Food items and recipes are often protected in this manner.

    A design patent protects the "ornamental appearance" of an object, rather than its "utility" or function, which is protected by a utility patent. In other words, if the invention is a useful object that has a novel shape or overall appearance, a design patent might provide the appropriate protection. To avoid infringement, a copier would have to produce a version that does not look "substantially similar to the ordinary observer."They cannot copy the shape and overall appearance without infringing the design patent.

    A provisional patent application is a step toward obtaining a utility patent, where the invention might not yet be ready to obtain a utility patent. In other words, if it seems as though the invention cannot yet obtain a utility patent, the provisional application may be filed in the Patent Office to establish the inventor's priority to the invention.As the inventor continues to develop the invention and make further developments which allow a utility patent to be obtained, then the inventor can "convert" the provisional application to a full utility application. This later application is "given credit" for the date when the provisional application was first filed.

    A provisional patent has several benefits:

    A) Patent Pending Status: The most well-known benefit of a Provisional Patent Application is that it allows the inventor to immediately begin marking the product "patent pending." This has a time-proven tremendous commercial value, similar to the "as seen on TV" label which is applied to many products. A product bearing both of these phrases clearly possesses a commercial marketing advantage right from the start.

    B) Ability to improve the invention: After filing the provisional application, the inventor has one year to "convert" the provisional into a "full blown" utility application.During that year, the inventor should try to commercialize the product and assess its potential. If the product appears commercially viable during that year, then the inventor is encouraged to convert the provisional application into a utility application.However, unlike a normal utility application which cannot be changed in any way, a provisional application may have additional material added to it to improve it upon its conversion within one year.Accordingly, any helpful information or tips which were obtained by the inventor or his marketing/advertising agents during commercialization of the product can be implemented and protected at that time.

    C) Establishment of a filing date: The provisional patent application also provides the inventor with a crucial "filing date." In other words, the date that the provisional is filed becomes the invention's filing date, even for the later filed/converted utility patent.

    Posted by Chris S. on 10/31/2013