Patent Application

Definition of a Patent

A patent is a contract between an inventor and the U.S. Government under which the government grants the inventor a limited monopoly. The limited monopoly gives the inventor the right to exclude others from making, using, or selling the claimed invention in the United States for a period of years (previously 17 years, but now 20 years for a utility patent). In return for these patent rights, the inventor discloses the complete invention to the public in order to promote the progress of science.

Constitutional Basis for a Patent

Patents are provided for in Article I, section 8, clause 8, of the U.S. Constitution, which state:

  • The Congress shall have power…[t]o 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.
  • The progress of science is enhanced in geometric proportions by the patent system.

Laws and Rules Governing Patents

The Constitution grants Congress the power to pass laws relating to patents. The patent laws are promulgated in Title 35 of the United States Code (“35 USC”). The Commissioner of Patents and Trademarks has authority from Congress to establish rules and regulations for the conduct of proceedings relating to the granting and issuing of patents, known as “patent office prosecution.”

Who May Apply

An application for a patent must be filed by the sole or joint inventors of an invention. There are a few exception one being that “a person to whom the inventor has assigned or is under obligation to assign the invention may make an application for a patent.” 35 USC 118.

How to Apply

A patent application must be filed in the USPTO, which is located in Arlington Virginia.

When Should You Apply

With the passage of the America Invents Act (“AIA”), which was implemented on March 16, 2013, the system changed from first to invent to first to file. Meaning that if someone has the same invention as you and beats you to filing then they get the patent if it is issued. So we recommend that you file any invention you may have right away.

Categories of Patents

There are three types of patents:
1) Utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof;
2) Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture; and
3) Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.

Reference: Ronald B. Hildreth, PLI Patent Law A Practitioners Guide.