Sickbeast, if you want to talk about patent law send me a PM. I worked as a patent examiner at the USPTO for over three years before I decided to go to law school. I currently work as a law clerk in a DC based patent/intellectual property firm, which means I do everything the attorneys do, I just don;t get paid as much and I don;t sign anything myself.
Below is a general overview of what is required for something to be patentble. This should be considered as a bare bones introduction to the subject. Patent Lawyers aren't the highest paid attorneys in the U.S. because this area of the law is simple.
Requirements for Patentability:
1) 35 U.S.C. 101 states, "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." Thus, your invention has to be "new," "useful" (which is interpreted very broadly), and must arguably fit into one of the categories specified. In general "anything under the sun that is touched by the hand of man" is considered by the courts to be eligible for patenting. Notable exceptions include natural laws and mathematical formulas, these are unpatentble in and of themselves.
2. In addition to #1 above, 35 U.S.C. 102 requires the invention to be "novel" and to have been invented by the applicant (inventorship disputes happen more oftent then you would imagine). What does it mean for something to be novel? Well basically it has to be different in some respect from the technology that was available at the time the invention was made (this technology and the references disclosing it is called "prior art" in the patent community). I.e. A baseball having a plastic cover is novel when compared to a baseball having a leather cover. See my description of the patent examination process below.
3. In addition to #'s 1 and 2 above, 35 U.S.C. 103 requires the invention to be non-obvious. What does it mean for something to be non-obvious? Well, there are a lot of considerations that come into play, but the basic premise can be summed up in the idea that one of ordainry skill in the art at the time the invention was made, looking at the references in the prior art, would not have been motivated to do what the inventor has done. This area of the law is pretty detailed and complicated, but I think my discussion of the examination process below will help you understand.
4. Ok, how do you "get" a patent. Well, you have to file a patent application with the USPTO and pay some fees to have it "examined" by a patent Examiner. The application basically consists of a brief discussion of the background of the invention, a summary description of the invention, a detailed description of the invention, drawings (if necessary) detailing the invention, and claims. OF all of these things, the claims are the most important, as they determine what the "scope" of the patent will be. Anything can be patented if you make the claims narrow enough, but if the claims are too narrow, the patent will not be woth the paper it is printed on, because nobody will infringe it. As for the actual mechanics of filing etc.
read this. I highly recommend getting an attorney to help you. While you can certainly file and get a patent yourself, an attorney will help greatly in making sure that the patent will have some value. There are a lot of legal twists that are counterintuitive in this area of the law, and its easy to screw yourself if you don't know what you are doing.
5. THINGS YOU SHOULD NOT DO IF YOU WANT TO PATENT SOMETHING: I put this section in caps because it is probably the most important. There are a few things you should be aware of if you want to patent something. Under 35 U.S.C. 102, if a reference discloses a claimed invention and is publicly used or printed in a reference more then one year prior to the filing date of the application, this is an
absolute bar to patentability. It doesn't matter if the reference is your own or if you were the one doing the public use, this bar will still apply. Rule of thumb is if you publish, present your invention at a conference, or disclose it to a bunch of people in an auncontrolled setting (i.e. a paty) make sure to file within one year of that disclosure. Otherwise you are throwing your money out the window.
6. Examination: Once an applciation is filed with the USPTO, it will sit for a couple years (the backlog of apps at the PTO is phenomenal), and then an Examiner will take a look at it. The Examiner will check to see if the applicaiton meets the requisite formal requirements, and will compare the claimerd invention to the prior art. Examiner's have a search tool called EAST (examiner's automated search tool) which is like google on crack. It is, by far, the most powerful boolean based search tool I have ever seen. Using this search tool, the Examiner can text search every US Patent that has issued since the early 1900's (might be earlier now, they've been OCR"ing a lot of the old stuff in). IN addition, the Examiner can search foreign patent documents and derwent abstracts. The Examiner will also searchrelavent scientific (or not so scientific) publications.
The goal of this search is to locate prior art that either anticipates or renders obvious the claimed invention. To anticipate the claimed invention (under 35 U.S.C. 102) the prior art reference must disclose all of the elements of the claimed invention. This does not mean the prior art and the claimed invention are "the same" (though this occurs occasionally), just that the elements of the inve tion that are claimed are disclosed.
If the search does not locate an anticipatory reference, the Examiner may combine two or more references in an effort to establish that the claimed invention is obvious. I.E., say you claim you invention as "comprising" elements XYZ. Prior art reference 1 teaches elements X and Y, but not Z. Prior art reference 2 teches element Z and some beneficial aspects of that element. The Examiner may assert that it would have been obvious to one of ordinary skill in the art at the time the invention was made to add element Z from reference 2 to reference 1, in order to obtain the advantages disclosed by reference 2. There are a number of issues that arise in this analysis, but I will leave those for a later discussion, if anyone is interested.
I'm happy to discuss the US Patent System with anyone who is interested. JKust send me a PM or reply to this thread and I'll try to answer when I get a chance. Law sschool+work= a very busy life.
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