United States patent law
Encyclopedia
United States patent law was established "to promote the Progress of Science and useful Arts, by securing for limited Times to Author
s and Inventors the exclusive Right to their respective Writings and Discoveries;" as provided by the United States Constitution
. Congress implemented these protections as a first-to-invent
patent
legal
framework. By contrast, all other national patent laws are first-to-file
systems. The provisions of the law are laid out in Title 35 of the United States Code
(U.S.C.) and give authority for the United States Patent and Trademark Office
. This system is permitted by Article One
, Section 8(8)
of the U.S. Constitution
which states:
In the U.S., a patent is a right to exclude others from making, using, selling, offering for sale, exporting components to be assembled into an infringing device outside the U.S., importing the product of a patented process practiced outside the U.S., inducing others to infringe, offering a product specially adapted for practice of the patent, and a few other very carefully defined categories. Thus, merely thinking about an invention, or drawing a diagram, is not an infringement. Research for "purely philosophical" inquiry is not an infringement, but research directed to commercial purposes is - unless the research is directed toward obtaining approval
of the Food and Drug Administration
for introduction of a generic version
of a patented drug.
Under current US law, the term of patent
is 20 years from the earliest claimed filing date (which can be extended via Patent Term Adjustment and Patent Term Extension). For applications filed before June 8, 1995, the term is 17 years from the issue date or 20 years from the earliest claimed domestic priority date, the longer term applying.
, the patentability of inventions is defined under Sections 100-105. Most notably, section 101 sets out subject matter that can be patented; section 102 defines novelty and loss of right to patent; section 103 lists what constitutes non-obvious subject matter.
The United States Constitution, Section 8, makes patents for inventions a constitutional right: "by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" without limiting such rights to product developers. Just as there is no legal requirement that owners of real property develop their vacant land, there is likewise no legal requirement that patent owners develop their inventions.
publishes patent
applications 18 months after they are filed. This time limit can be extended under certain circumstances for an additional fee. The applications are published before a patent has been granted on them.
Author
An author is broadly defined as "the person who originates or gives existence to anything" and that authorship determines responsibility for what is created. Narrowly defined, an author is the originator of any written work.-Legal significance:...
s and Inventors the exclusive Right to their respective Writings and Discoveries;" as provided by the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
. Congress implemented these protections as a first-to-invent
First to file and first to invent
First to file and first to invent are legal concepts that define who has the right to the grant of a patent for an invention. The first-to-file system is used in all countries except for the United States, which will switch to a first-to-file system on March 16, 2013 after the enactment of the...
patent
Patent
A patent is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention....
legal
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
framework. By contrast, all other national patent laws are first-to-file
First to file and first to invent
First to file and first to invent are legal concepts that define who has the right to the grant of a patent for an invention. The first-to-file system is used in all countries except for the United States, which will switch to a first-to-file system on March 16, 2013 after the enactment of the...
systems. The provisions of the law are laid out in Title 35 of the United States Code
Title 35 of the United States Code
Title 35 of the United States Code is a title of United States Code regarding patent law. The sections of Title 35 govern all aspects of patent law in the United States. There are currently 37 chapters, which include 376 sections , in Title 35.Federally recognized forms of intellectual property are...
(U.S.C.) and give authority for the United States Patent and Trademark Office
United States Patent and Trademark Office
The United States Patent and Trademark Office is an agency in the United States Department of Commerce that issues patents to inventors and businesses for their inventions, and trademark registration for product and intellectual property identification.The USPTO is based in Alexandria, Virginia,...
. This system is permitted by Article One
Article One of the United States Constitution
Article One of the United States Constitution describes the powers of Congress, the legislative branch of the federal government. The Article establishes the powers of and limitations on the Congress, consisting of a House of Representatives composed of Representatives, with each state gaining or...
, Section 8(8)
Copyright Clause
Article I, Section 8, Clause 8 of the United States Constitution, known as the Copyright Clause, empowers the United States Congress:- Other Terms :This clause is also referred to as:* Copyright and Patent Clause* Patent and Copyright Clause...
of the U.S. Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
which states:
- The Congress shall have power...To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;
In the U.S., a patent is a right to exclude others from making, using, selling, offering for sale, exporting components to be assembled into an infringing device outside the U.S., importing the product of a patented process practiced outside the U.S., inducing others to infringe, offering a product specially adapted for practice of the patent, and a few other very carefully defined categories. Thus, merely thinking about an invention, or drawing a diagram, is not an infringement. Research for "purely philosophical" inquiry is not an infringement, but research directed to commercial purposes is - unless the research is directed toward obtaining approval
Research exemption
In patent law, the research exemption or safe harbour exemption is an exemption to the rights conferred by patents, which is especially relevant to drugs...
of the Food and Drug Administration
Food and Drug Administration
The Food and Drug Administration is an agency of the United States Department of Health and Human Services, one of the United States federal executive departments...
for introduction of a generic version
Generic drug
A generic drug is a drug defined as "a drug product that is comparable to brand/reference listed drug product in dosage form, strength, route of administration, quality and performance characteristics, and intended use." It has also been defined as a term referring to any drug marketed under its...
of a patented drug.
Under current US law, the term of patent
Term of patent in the United States
In the United States, under current patent law, the term of patent, provided that maintenance fees are paid on time, are:* For applications filed on or after June 8, 1995, the patent term is 20 years from the filing date of the earliest U.S...
is 20 years from the earliest claimed filing date (which can be extended via Patent Term Adjustment and Patent Term Extension). For applications filed before June 8, 1995, the term is 17 years from the issue date or 20 years from the earliest claimed domestic priority date, the longer term applying.
Substantive law
Under Title 35 of the United States CodeTitle 35 of the United States Code
Title 35 of the United States Code is a title of United States Code regarding patent law. The sections of Title 35 govern all aspects of patent law in the United States. There are currently 37 chapters, which include 376 sections , in Title 35.Federally recognized forms of intellectual property are...
, the patentability of inventions is defined under Sections 100-105. Most notably, section 101 sets out subject matter that can be patented; section 102 defines novelty and loss of right to patent; section 103 lists what constitutes non-obvious subject matter.
The United States Constitution, Section 8, makes patents for inventions a constitutional right: "by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" without limiting such rights to product developers. Just as there is no legal requirement that owners of real property develop their vacant land, there is likewise no legal requirement that patent owners develop their inventions.
Pre-grant publication (PG Pub)
The United States Patent and Trademark OfficeUnited States Patent and Trademark Office
The United States Patent and Trademark Office is an agency in the United States Department of Commerce that issues patents to inventors and businesses for their inventions, and trademark registration for product and intellectual property identification.The USPTO is based in Alexandria, Virginia,...
publishes patent
Patent
A patent is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention....
applications 18 months after they are filed. This time limit can be extended under certain circumstances for an additional fee. The applications are published before a patent has been granted on them.
International Trade Commission (ITC)
In the United States, a patent holder may wish to pursue a cause of action in the ITC instead of, or in addition to the court system. In contrast to courts who have a wide range of remedies at their disposal, the ITC can only do one thing when it comes to patent infringement: grant or deny injunctive relief by ordering to keep infringing products from being imported into the United States. In some cases, this may provide a quicker resolution to a patent owner's problems.Patents as property
Like any other property right, patents may be sold, licensed, mortgaged, assigned, transferred, given away, abandoned, actively developed, or held as investments without being developed. Just as there is no legal requirement that owners of real property develop their vacant land, there is likewise no legal requirement that patent owners develop their inventions.See also
- History of United States patent lawHistory of United States patent law"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;" From the United States Constitution, Article I, Section 8, Clause 8....
- List of United States patent law cases
- Timeline of United States inventionsTimeline of United States inventionsThe following articles cover the timeline of United States inventions* Timeline of United States inventions * Timeline of United States inventions * Timeline of United States inventions...
Concepts
- All elements testAll elements testThe all elements rule or all limitations rule is a legal test used in US patent law to determine whether a given reference anticipates a patent claim. The rule is also applicable to an obviousness analysis...
- Article of manufacture (type of claim)
- Assignor estoppelAssignor estoppelThe doctrine of assignor estoppel is a doctrine of United States patent law barring a patent's seller from attacking the patent's validity in subsequent patent infringement litigation. The doctrine is based on the doctrine of legal estoppel, which prohibits a grantor from challenging the validity...
- Composition of matter (type of claim)
- Continuing patent applicationContinuing patent applicationUnder United States patent law, a continuing patent application is a patent application which follows, and claims priority to, an earlier filed patent application....
- Design patentDesign patentIn the United States, a design patent is a patent granted on the ornamental design of a functional item. Design patents are a type of industrial design right. Ornamental designs of jewelry, furniture, beverage containers and computer icons are examples of objects that are covered by design...
- Doctrine of inherencyDoctrine of inherencyIn United States patent law, for a patent claim to be valid, it must claim a subject matter that is novel and non-obvious. A claim is anticipated if a single prior art reference, either expressly or inherently, discloses every feature of a claimed invention...
- Doctrine of repair and reconstructionDoctrine of repair and reconstructionThe doctrine of repair and reconstruction in United States patent law distinguishes between permissible repair of a patented article, which the right of an owner of property to preserve its utility and operability guarantees, and impermissible reconstruction of a patented article, which is patent...
- Duty of candorDuty of candor-UK Public Law:The Duty of Candour is the concept a public authority should not seek to win the litigation at all costs butto assist the court in reaching the correct result and thereby to improve standards in public administration....
- Duty of disclosureDuty of disclosureIn U.S. legal procedure, each party to a lawsuit has the duty to disclose certain information, such as the names and addresses of witnesses, and copies of any documents that it intends to use as evidence, to the opposing party...
- Exhausted combination doctrineExhausted combination doctrineThe exhausted combination doctrine, also referred to as the doctrine of the Lincoln Engineering case, is the doctrine of U.S...
- First-sale doctrineFirst-sale doctrine (patent)Under the exhaustion doctrine, doctrine of exhaustion, or first sale doctrine, the first unrestricted sale of a patented item exhausts the patentee's control over that particular item...
- Flash of geniusFlash of geniusThe Flash of Genius Doctrine or Flash of Genius Test was a test for patentability used by the United States Federal Courts for over a decade, circa 1941. The doctrine was formalized in Cuno Engineering v. Automatic Devices., which held that the inventive act had to come into the mind of an...
- Inequitable conductInequitable conductIn United States patent law, inequitable conduct is a defense to allegations of patent infringement. Even in the instance that a patent is valid and infringed, the court ruling on infringement may exercise its equitable discretion not to enforce the patent if the patentee has engaged in inequitable...
- Information disclosure statementInformation disclosure statementAn information disclosure statement refers to a submission of relevant background art or information to the United States Patent and Trademark Office by an applicant for a patent during the patent prosecution process...
(IDS) - Interference proceedingInterference proceedingAn interference proceeding, also known as priority contest, is an inter partes proceeding to determine the priority issues of multiple patent applications. It is a unique procedure in the patent law of the United States. Unlike in most other countries which have adopted the first-to-file system,...
- Non-obviousnessInventive step and non-obviousnessThe inventive step and non-obviousness reflect a same general patentability requirement present in most patent laws, according to which an invention should be sufficiently inventive — i.e., non-obvious — in order to be patented....
- Machine (patent) (type of claim)
- Markman hearingMarkman hearingA Markman hearing is a pretrial hearing in a U.S. District Court during which a judge examines evidence from all parties on the appropriate meanings of relevant key words used in a patent claim, when patent infringement is alleged by a plaintiff...
- Method (patent) (type of claim)
- Non-provisional patent applicationNon-provisional patent applicationA non-provisional patent application is a term referring to a United States patent application that is not a provisional application. The term arose in 1995 to distinguish what were at the time "normal" patent applications from the newly established provisional applications...
- NoveltyNovelty (patent)Novelty is a patentability requirement. An invention is not patentable if the claimed subject matter was disclosed before the date of filing, or before the date of priority if a priority is claimed, of the patent application....
- On-sale barOn-sale barThe on-sale bar of 35 U.S.C. 102 is a United States patent law term that means if an invention has been for sale for over one year, it is no longer patentable.-35 U.S.C...
- Patent infringement under United States lawPatent infringement under United States lawIn the United States, a patent provides its proprietor with the right to exclude others from utilizing the invention claimed in that patent. Should a person utilize that invention, without the permission of the patent proprietor, they may infringe that patent.More specifically, an infringement may...
- Person having ordinary skill in the artPerson having ordinary skill in the artThe person having ordinary skill in the art , the person of ordinary skill in the art, the skilled addressee, person skilled in the art or simply the skilled person is a legal fiction found in many patent laws throughout the world...
(PHOSITA) - Petition to make specialPetition to make specialIn United States patent law, a petition to make special is a formal request submitted to the United States Patent and Trademark Office asking that a patent application be examined ahead of the other pending applications in the same technological art.- Background and rationale :Normally patent...
- Printed matter (patent law)Printed matter (patent law)The term printed matter, in United States patent law, refers to information associated with an article of manufacture that is claimed to distinguish an article from similar articles already in the prior art...
- Prosecution disclaimerProsecution disclaimerUnder United States patent law a prosecution disclaimer is a statement made by a patent applicant during examination of a patent application which can limit the scope of protection provided by the resulting patent...
- Prosecution history estoppelProsecution history estoppelProsecution history estoppel, also known as file-wrapper estoppel, is a term used in United States patent law to indicate that a person who has filed a patent application, and then makes narrowing amendments to the application to accommodate the patent law, may be precluded from invoking the...
- Provisional applicationProvisional applicationUnder United States patent law, a provisional application for patent is a legal document filed in the United States Patent and Trademark Office , that establishes an early filing date, but which does not mature into an issued patent unless the applicant files a regular patent application within one...
- Reduction to practiceReduction to practiceIn United States patent law, the reduction to practice is a concept meaning the embodiment of the concept of an invention. The date of this embodiment is critical to the determination of priority between inventors in an interference proceeding....
- ReexaminationReexaminationIn United States patent law, a reexamination is a process whereby a third party or inventor can have a patent reexamined by a patent examiner to verify that the subject matter it claims is patentable...
- Reissue application
- Small entity statusSmall entity statusSmall entity status in United States patent law allows small businesses, independent inventors, nonprofit organizations to file a patent application and maintain an issued patent for a reduced fee—a 50% reduction....
- Software patents under United States patent lawSoftware patents under United States patent lawSoftware or computer programs are not explicitly mentioned in United States patent law. In the face of new technologies, decisions of the United States Supreme Court and United States Court of Appeals for the Federal Circuit in the latter part of the 20th century sought to redefine the boundary...
- Statutory Invention RegistrationUnited States Statutory Invention RegistrationIn United States patent law, a statutory invention registration is a publication of an invention by the United States Patent and Trademark Office . The publication is made at the request of the applicant...
- Submarine patentSubmarine patentA submarine patent is a patent whose issuance and publication are intentionally delayed by the applicant for a long time, such as several years. This strategy requires a patent system where patent applications are not published. In the United States, patent applications filed before November 2000...
- Term of patent in the United StatesTerm of patent in the United StatesIn the United States, under current patent law, the term of patent, provided that maintenance fees are paid on time, are:* For applications filed on or after June 8, 1995, the patent term is 20 years from the filing date of the earliest U.S...
- Transitional phraseTransitional phraseA transitional phrase, in United States patent law, is a phrase that links the preamble of a patent claim to the specific elements set forth in the claim which define what the invention itself actually is...
- United States Defensive PublicationUnited States Defensive PublicationA United States Defensive Publication is a published patent application for which the inventor has elected not to get patent coverage. Defensive Publications were made between April 1968 and May 8, 1985...
- UtilityUtility (patent)In United States patent law, utility is a patentability requirement. As provided by , an invention is "useful" if it provides some identifiable benefit and is capable of use...
- X-PatentX-PatentThe X-Patents are all the patents issued by the United States Patent and Trademark Office from July 1790 , to July 1836. The actual number is unknown, but the best estimate is 9,957. The records were burned in a fire, in December 1836, while in temporary storage...
Legislation
- 28 USC 1498. This statute allows the US government to override patent protection (or contract another entity to do so) for public use purposes. The patent owner can sue for limited compensation.
- America Invents ActAmerica Invents ActThe Leahy-Smith America Invents Act is a United States federal statute that was passed by Congress and was signed into law by President Barack Obama on September 16, 2011. The law represents the most significant change to the U.S...
(2011) - American Inventors Protection ActAmerican Inventors Protection ActThe American Inventors Protection Act is a United States federal law enacted on November 29, 1999 as Public Law 106-113. In 2002, the Intellectual Property and High Technology Technical Amendments Act of 2002, Public Law 107-273, amended AIPA....
(AIPA) - Bayh-Dole ActBayh-Dole ActThe Bayh–Dole Act or Patent and Trademark Law Amendments Act is United States legislation dealing with intellectual property arising from federal government-funded research. Adopted in 1980, Bayh-Dole is codified in -212, and implemented by 37 C.F.R. 401. Among other things, it gave U.S...
- Invention Secrecy ActInvention Secrecy ActThe Invention Secrecy Act of 1951, codified at , is a body of United States federal law designed to prevent disclosure of new inventions and technologies that, in the opinion of selected federal agencies, present a possible threat to the national security of the United States.The U.S...
(1951) - Patent Act of 1790Patent Act of 1790The Patent Act of 1790 was the first patent statute passed by the federal government of the United States. It was enacted on April 10, 1790, about one year after the constitution was ratified and a new government was organized. The law was concise, defining the subject matter of a U.S...
, First Patent Act - April 7, 1790 - Patent Reform Act of 2005Patent Reform Act of 2005The Patent Reform Act of 2005 was United States patent legislation proposed in the 109th United States Congress. Texas Republican Congressman Lamar S. Smith introduced the Act on 8 June 2005. Smith called the Act "the most comprehensive change to U.S...
- Patent Reform Act of 2007Patent Reform Act of 2007The Patent Reform Act of 2007 is a proposal introduced in the 110th United States Congress for changes in United States patent law. Democratic Congressman Howard Berman introduced the House of Representatives bill on April 18, 2007. Democratic Party Senator Patrick Leahy introduced the Senate bill...
- Patent Reform Act of 2009Patent Reform Act of 2009The Patent Reform Act of 2009 was a set of proposals introduced in the 111th United States Congress for changes in United States patent law. Senators Orrin Hatch and Patrick Leahy introduced a Senate bill on March 3, 2009. Representative John Conyers introduced the House version, H.R. 1260, the...
- Plant Patent ActPlant Patent ActThe Plant Patent Act of 1930 is a United States federal law spurred by the work of Luther Burbank....
(1930) - Title 35 of the United States CodeTitle 35 of the United States CodeTitle 35 of the United States Code is a title of United States Code regarding patent law. The sections of Title 35 govern all aspects of patent law in the United States. There are currently 37 chapters, which include 376 sections , in Title 35.Federally recognized forms of intellectual property are...
Other
- American Intellectual Property Law AssociationAmerican Intellectual Property Law AssociationThe American Intellectual Property Law Association is a national bar association that was formed in 1897 to improve intellectual property laws and educate the public about such issues....
(AIPLA) - Board of Patent Appeals and InterferencesBoard of Patent Appeals and InterferencesThe Board of Patent Appeals and Interferences is an administrative law body of the United States Patent and Trademark Office , which decides issues of patentability. The Chief Administrative Patent Judge is James Donald Smith.-Structure:...
(BPAI) - Confederate Patent OfficeConfederate Patent OfficeThe Confederate Patent Office was the agency of the Confederate States of America charged with issuing patents on inventions. The Chief Clerk during its entire existence was Rufus R...
- European patent lawEuropean patent lawEuropean patent law covers a wide range of legislations including national patent laws, the Strasbourg Convention of 1963, the European Patent Convention of 1973, and a number of European Union directives and regulations....
- Japanese patent lawJapanese patent lawJapanese patent law is based on the first-to-file principle and is mainly given force by the Patent Act of Japan. Article 2 defines an invention as "the highly advanced creation of technical ideas by which a law of nature is utilized"...
- List of top United States patent recipients
- Manual of Patent Examining ProcedureManual of Patent Examining ProcedureThe Manual of Patent Examining Procedure is published by the United States Patent and Trademark Office for use by patent attorneys and agents and patent examiners. It describes all of the laws and regulations that must be followed in the examination of U.S. patent applications, and articulates...
(MPEP) - United States copyright lawUnited States copyright lawThe copyright law of the United States governs the legally enforceable rights of creative and artistic works under the laws of the United States.Copyright law in the United States is part of federal law, and is authorized by the U.S. Constitution...
- United States Court of Appeals for the Federal CircuitUnited States Court of Appeals for the Federal Circuit-Vacancies and pending nominations:-List of former judges:-Chief judges:Notwithstanding the foregoing, when the court was initially created, Congress had to resolve which chief judge of the predecessor courts would become the first chief judge...
(CAFC) - United States Court of Customs and Patent AppealsUnited States Court of Customs and Patent AppealsThe United States Court of Customs and Patent Appeals is a former United States federal court which existed from 1909 to 1982 and had jurisdiction over certain types of civil disputes.-History:...
(CCPA) - United States Patent and Trademark OfficeUnited States Patent and Trademark OfficeThe United States Patent and Trademark Office is an agency in the United States Department of Commerce that issues patents to inventors and businesses for their inventions, and trademark registration for product and intellectual property identification.The USPTO is based in Alexandria, Virginia,...
(USPTO) - United States Patents QuarterlyUnited States Patents QuarterlyThe United States Patents Quarterly is a United States legal reporter published by the Bureau of National Affairs in Washington, D.C. The USPQ covers intellectual property cases including patents, copyrights, trademarks, and trade secrets, from 1913 to the present.The USPQ reports case law from...
(USPQ) - United States trademark lawUnited States trademark lawTrademarks were traditionally protected in the United States only under State common law, growing out of the tort of unfair competition. As early as 1791, Thomas Jefferson proposed that the marks of sailcloth makers could be protected under the Commerce Clause, but it was not until 1870 that...
External links
- United States Patent and Trademark Office (USPTO) web site:
- US code, Title 35