What is Patent Law?

At its core, patent law is a branch of intellectual property law that grants inventors exclusive rights to their inventions for a limited period. The exclusive rights provided by a patent allows inventors to control the making, using, and selling of their patented invention for a limited time. An international patent law does not exist, each individual country or territory implements their own patent law. In other words, each country or region has its own laws, rules, and regulations regarding patents. Only patents issued by that country or region are protected in that country. To have patent protection in multiple countries or territories, it is required file individual patent applications with the respective jurisdiction’s patent office.

In the U.S., patent law originates in Title 35 of the Constitution – “Patents” of the United States Code (U.S.C.). U.S.C. Title 35 (usually written 35 U.S.C.) is authorized by the U.S. Constitution in Article One, Section 8. This title both establishes the United States Patent and Trademark Office (USPTO) and the patent law under which the USPTO determines what is patentable (35 U.S.C.). Patent practitioners (patent attorney or patent agent) determine if an invention is patentable by conducting a prior art search and patentability study looking for specific elements. These key characteristics that make an invention patentable in the U.S. can be found in 35 U.S.C. § 101 through § 103. 

35 U.S.C. § 101 governs what is patentable subject matter. This section is used to determine if an invention is patent eligible subject matter and useful. To be eligible, an invention must fall within the 4 statutory categories defined by patent law: processes, machines, manufactures, and compositions of matter. Abstract ideas, laws of nature, and natural phenomena are generally excluded from patent protection.

35 U.S.C. § 102 defines the novelty requirement. This section is used to determine if an invention is new and has not been disclosed or made available to the public before the filing date of the patent application.

35 U.S.C. § 103 defines the non-obviousness requirement. This section is used to determine if an invention is non-obvious to a person with ordinary skill in the relevant field.

The USPTO implements the patent law in 35 U.S.C. through the Code of Federal Regulations (CFR) and the Manual of Patent Examination Procedure (MPEP) where you can find all the rules and procedures to apply for a patent. The specific applicable title in the CFR for patents, trademarks, and copyrights is Title 37, referred to as 37 CFR. Title 37 is divided into four chapters, each divided into subchapters and parts that address all the rules to implement patent law. The MPEP is made up of 29 chapters and seven appendices, organized by subject, that contains detailed information and specifics regarding all steps and parts of a patent application, the procedures involved, and its examination. The MPEP includes instructions to both examiners and applicant, providing examples of the many kinds of things that come up in a patent application with regard to office actions. This content includes instructions on applicant response options and procedures for questioning the examiner.

Patent law defines the types of patents granted in the United States by the nature of the invention it covers. The the most common type of patent issued are utility patents. Utility patents protect a wide range of new and useful inventions that fall into the category of processes, machines, articles of manufacture, and compositions of matter. Processes are defined as a method or series of steps to achieve a specific result. Machines are defined as a device or apparatus with a distinct structure and function. Articles of manufacture are defined as tangible goods or products with a specific function. Compositions of matter are defined as chemical compositions with particular structures or ingredients.

The patent application process for a utility invention is quite similar to that of a design innovation or plant creation, it just requires a few more details. A utility invention can be filed in either a provisional or non-provisional patent application. A provisional patent application is simply a placeholder for a later filed non-provisional patent application. A non-provisional patent application must be filed within 12 months from the issuance of a provisional patent application in order to avoid abandonment of the provisional. Provisionals do not require any claims to be written, however a specification describing how to make and use a new invention as well as any necessary drawings must be included. A complete and proper non-provisional utility patent application should include a title, drawings and a section for the brief description of the drawings, cross-reference to related applications, background of the invention (technical field and background art), summary of the invention, detailed description of the invention, claims, and the abstract.

After a utility patent is issued, the inventor gains exclusive rights to the invention for a period of 20 years from the filing date of the patent application. However, in order to keep the granted utility patent valid, patent owners must keep up with patent maintenance. Maintenance for utility patents requires USPTO fees to be paid at 3.5 years, 7.5 years, and 11.5 years from the date of issuance, the cost depending on the applicant’s entity status. If these maintenance fees are not paid within the specified window, the patent will expire and the piece of intellectual property will become available to the public for manufacturing, use, and/or selling.

Design patents protect the ornamental design or appearance of a functional item. Design patents focus on the aesthetic and visual aspects of the invention rather than its functional features like utility patents do. Design patents have a shorter term of protection than utility patents, lasting only 15 years from the date of issuance rather than 20 years.

A design patent application can only be filed as a non-provisional patent application. The patent application process for a design innovation is much simpler than a utility invention, as it requires less parts to the application. A complete and proper design patent application should contain drawings of the design and a specification section that includes a single claim, a brief description of the drawings, and a description of the nature and intended use of the design invention. The design drawings typically include the usual six orthogonal views (top, bottom, left, right, front, and back). A seventh view of the design in perspective view is also frequently needed. United States patent law requires that any included drawings or flowcharts must display proper labeling and numbering. This is to ensure that references are clear and that the disclosure in the description of the specification is complete.

Plant patents protect new and distinct varieties of plants that are reproduced asexually, meaning they are not grown from seeds but through methods such as cuttings, grafting, or other forms of vegetative propagation. This category acknowledges the efforts of plant breeders in developing new and unique plant species.

Plant creations have a similar patent application process to utility inventions. New plant innovations can also be filed using a provisional or non-provisional patent application. The same rules apply regarding the need to file a non-provisional for the same innovation within 12 months of filing a provisional patent application. When preparing a patent application for a plant creation, it is crucial to include documentation details of the plant. Included should be the unique characteristics of the new plant variety, which may include features such as color, size, growth habit, and other distinctive traits, as well as photographs and/or drawings. Both design and plant patents are void from any USPTO maintenance fees after issuance.

There are multiple methods of acquiring patent protection for new plants. If the plant innovation is not patent eligible subject matter, there are other options available that provide the same amount of legal protection. The Plant Variety Protection Act (PVPA) protects asexually reproduced plants, seed reproduced and tuber propagated plants, all of which are not protected by plant patents. The Plant Variety Protection Office (PVPO) grants certificates that provide 20 years of legal protection for new varieties of plants, and 25 years for new varieties of trees, shrubs, and vines. There also exists the International Union for the Protection of New Varieties of Plants (UPOV), an international treaty that grants plant breeders rights when the plants meet the four criteria. The four UPOV criteria are the same criteria to qualify for PVPA: 1. novel, 2. distinct, 3. homogeneous, and 4. stable.

By granting inventors exclusive rights to their creations, patent law serves the function of creating a natural promotion of innovation, economic development, and the dissemination of knowledge. In exchange for exclusive rights, inventors are required to disclose the details of their inventions in the patent application. This disclosure of information contributes to existing knowledge in a particular field, which allows others to build upon existing innovations.

Patent law directly contributes to the advancement of science and technology. Patent protection serves as a powerful incentive for inventors to invest time, effort, and resources into the development of new and improved technologies. The exclusive rights granted by patents enable inventors to commercialize their inventions without the fear of immediate competition, fostering a climate conducive to innovation. This incentive to invest inevitably drives economic growth by promoting the development of new industries and technologies. The protection offered by patents attracts investment, stimulates job creation, and enhances the overall competitiveness of nations in the global market. The acceleration of technological progress additionally occurs when patents are bought, sold, and/or licensed. This transfer of technology from inventors to other individuals or entities creates a widespread dissemination of knowledge.