A patent for an invention is a grant of a property right by the Government to the inventor (or his or her heirs or assigns), acting through the Patent and Trademark Office. The term of the patent is 17 years from the date the patent is granted, subject to the payment of maintenance fees.

The right conferred by the patent grant extends throughout the United States and its territories and possessions.

The right conferred by the patent grant is, in the language of the statute of the grant itself, "the right to exclude others from making, using, or selling" the invention. What is granted is not the right to make, use, or sell, but the right to exclude others from making, using, or selling the invention.

It is important to note that a patent is distinctly different from a trademark or a copyright.

What Can Be Patented?

The patent law specifies the general field of subject matter that can be patented and the conditions under which a patent may be obtained.

In the language of the statue, any person who "invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvements thereof, may obtain a patent," subject to the conditions and requirements of the law. By the word "process" is meant a process or method, and new processes, primarily industrial or technical processes, may be patented. The term "machine" used in the statute needs no explanation. The term "manufactured" refers to articles which are made, and includes all manufactured articles. The term "composition of matter" relates to chemical compositions and may include mixtures of ingredients as well as the new chemical compounds. These classes of subject matter take together include practically everything which is made by man and the process for making them.

The patent law specifies that the subject matter must be "useful." The term "useful" in this connection refers to the condition that the subject matter has a useful purpose and also includes operativeness, that is, a machine will not operate to operate to perform the intended purpose would not be called useful, and therefore would not be granted a patent.

In the case of mixture of ingredients, such as medicines, a patent cannot be granted unless there is more the mixture than the effect of its components. (So called patent medicines are ordinarily not patented; the phrase "patent medicine" in this connection does not have the meaning that the medicine is patented.) A patent cannot be obtained upon a mere idea or suggestion. The patent is granted upon the idea or suggestion. The patent is granted upon the new machine, manufacture, etc., as has been said, and not upon the idea or suggestion of the new machine. A complete description of the actual machine or other subject matter sought to be patented is required.

Attorneys and Agents

The preparation of an application for patent and the conduction of the proceedings in the Patent and Trademark Office to obtain the patent is an undertaking requiring the knowledge of the scientific or technical matters involved in the particular invention.

Inventors may prepare their own applications and file them in the Patent and Trademark Office and conduct the proceedings themselves, but unless they are familiar with these matters or study them in detail, the may get into considerable difficulty. While a patent may be obtained in many cases by persons not skilled in this work, there would be no assurance that the patent obtained would adequately protect the particular invention. In short, it is strongly recommended that a qualified attorney be employed to protect the best interests of anyone seeking a patent.

According to the law, only the inventor may apply for a patent, with certain exceptions. If a person who is not the inventor should apply for a patent, the patent, if it were obtained, would be invalid. The person applying in such a case who falsely states that he/she is the inventor would also be subject to criminal penalties. If the inventor is dead, the application may be made by legal representatives, that is, the administrator or executor of the estate.

If two or more persons make and invention jointly, they apply for a patent as joint inventors. A person who makes a financial contribution is not a joint inventor and cannot be joined in the application as an inventor. It is possible to correct an innocent mistake in erroneously omitting an inventor or in erroneously naming a person as an inventor.

An application for a patent is made to the Commissioner of Patents and Trademarks and includes:

(1) A written document which comprises a specification (description and claims), and an oath or declaration.
(2) A drawing in those cases in which a drawing is necessary; and
(3) The filing fee.

Answers To Questions Frequently Asked

1. Q. What to the terms "patent pending" and "patent applied for mean?
A. They are used by a manufacturer or seller of an article to inform the public that an application for patent on that article is on file in the Patent and Trademark Office. The law imposes a fine on those who use these terms falsely to deceive the public.

2. Q. Is there any danger that the Patent and Trademark office will give others information contained in my application while it is pending?
A. No. All patent applications are maintained with the strictest secrecy until the patent is issued. After the patent is issued, however, the Office file containing the application and all correspondence leading up to issuance of the patent is made available in the Files Information Room for inspection by anyone, and copies of these files may be purchased for the Office.

3. Q. May I write to the Patent and Trademark Office directly about my application after it is filed?
A. The Office will answer an applicant's inquiries as the to status of the application, and inform you whether your application has been rejected, allowed, or is awaiting action. However, if you have a patent attorney or agent the Office will not correspond with both you and the attorney concerning the merits of your application. All comments concerning your application should be forwarded through your attorney or agent.

4. Q. Is it necessary to go to the Patent and Trademark Office to transact business concerning patent matters?
A. No. Most business with the Office is conducted by correspondence. Interviews regarding pending applications can be arranged with examiners, however, and are often helpful.

5. Q. If two or more persons work together to make and invention, to whom will the patent be granted?
A. If each had a share in the ideas forming the invention, they are joint inventors and patent will be issued to them jointly on the basis of a proper patent application. If on the other hand one of these persons has provided all of the ideas of the invention. If on the other hand one of these persons has provided all of the ideas of the invention, and the other has only followed instructions in making it, the person who contributed the idea is the sole inventor and the patent application and patent shall be in his/her name alone.

6 Q. If one person furnishes all of the ideas to make an invention and another employs him or furnishes the money for building and testing the invention, should the patent application be filed by the jointly?
A. No. The application must be signed by the true inventor, and filed in the Patent and Trademark Office, in the inventors name. This is the person who furnishes the ideas, not the employer or the person who furnishes the money.

7. Q. Does the Patent and Trademark Office control the fees charged by patent attorneys and agents for their services?
A. No. This is a matter between you and your patent Attorney or agent in which the Office takes no part. To avoid misunderstanding you may wish to ask for estimate charges for: (a) the search (b) preparation of the patent application, Patent and Trademark Office prosecution.

8. Q. Will the Patent and Trademark Office help me to select a patent attorney or agent to make my patent search or to prepare and prosecute my patent application?
A. No. The Office cannot make this choice for you. However, your own friends or general attorney may help you in making a selection from among those listed as registered practitioners on the Office roster. Also, some bar associations operate layer referral services that maintain lists of patent lawyers available to accept new clients.

9. Q. Will the Patent and Trademark Office advise me as to whether a certain patent promotion organization is reliable and trustworthy?
A. No. The Office has no control over such organizations and does not supply information about them. It is advisable, however, to check on the reputation of invention promotion firms before making any commitments. It is suggested that you obtain this information by inquiring of the Better Business Bureau of the city in which the organization is located, or of the state in which the organization has its place of business. You may also undertake to make sure that you are dealing with reliable people by asking your own patent attorney or agent or by inquiry of others who may know them.

10. Q. Are there any organizations in my area which can tell me how and where I may be able to obtain assistance in developing and marketing my invention?
A. Yes. In your own or neighboring communities you may inquire of such organizations as chambers of commerce, and banks. Many Communities have locally financed industrial development organizations which can help you locate manufacturers and individuals who might be interested in promoting your idea.

11. Q. Are there any state government agencies that can help me in developing and marketing of my invention?
A. Yes. In nearly all states there are state planning and development agencies or departments of commerce and industry which seek new product and new process ideas to assist manufacturers and communities in the state. If you do not know the names or addresses of your organizations you can obtain this information by writing to the governor of your state.

12. Q. Can the Patent and Trademark Office assist me in the developing and marketing of my patent?
A. The office cannot act or advise concerning the business transactions or arrangements that are involved in the development and marketing of an invention. However, the Office will publish, at the request of a patent owner, a notice in the "Official Gazette" that the patent is available for licensing or sale. The fee for this is $20.

For further information and literature write to:

U.S. Department of Commerce
Patent and Trademark Office
Washington, D.C. 20231