What is a Patent?
Russell Egan, Esq.

Russell Egan is an Houston, Texas intellectual property attorney with extensive experience interacting with inventors to obtain patent protection for their properties.  This includes novelty, infringement and validity searches and opinions, application preparation and prosecution, appeals and interferences, and other needs as they arise.  He has obtained over 500 domestic and foreign patents for individuals and corporations covering a wide range of technologies and subject matter.  His clients range from Fortune 500 corporations   to small, single member entities.  His web site is located at www.lawyerscenter.com/patentlaw.

A patent is a form of a contract between an inventor and a government giving benefits to both the inventor and the public.

A patent gives the inventor the right to exclude others from making, using, or selling the patented invention for a limited time (twenty years from the filing date and after the patent issues); and the patent gives the public a full and complete description of the invention, often illustrated, that explains what the invention is and how the invention works.  Anyone is free to use these teachings for inspiration and reference in making new contributions, as long as the results do not infringe any patent which is in force.

One cannot have the first benefit without offering the second.  In order to get the benefit (the right to exclude others), the inventor has to give a benefit (teaching others how the invention works).  This is how Congress has chosen to carry out the constitutional objective of granting patents "to promote the progress of useful arts".

A patent grants only the right to exclude others.  A patent does not grant an absolute right to make or sell the invention.  Other impediments, such as someone else's patent that covers a key component of the invention, may stand in the way.

What is patentable?

To be patentable, an invention must fall within at least one of the following categories:

an article of manufacture;
a machine;
a process;
a composition of matter (a chemical compound);
an improvement of any of the above; or
an asexually reproduced plant.

Additionally, patentable inventions must be:

new;
useful; and
non-obvious.

Abstract ideas and scientific principles cannot be patented.  They must first be embodied in a device or process that falls into one of the above classes.  Software can be patented if it can be described as an embodiment of such a device or process.

An invention is "new" unless:

• It was first invented by someone else;

• It was described in a publication anywhere in the world more than one year before a patent application was filed; or

• It was put in public use or on sale in the United States more than one year before a patent application was filed.

An invention is "useful" if it accomplishes its intended purpose--that is, if it works.  Most inventions (except perpetual motion machines) pass this test without difficulty.

An invention is "non-obvious" if the differences between the invention and the earlier work of others are such that the invention would not have been obvious to a person with ordinary skill in the art ("art" means the technology to which the invention relates).

Patents are all "territorial" in nature, that is, there is no such thing as a universal or international patent.  Each invention must be separately patented in each country where the inventor wishes to protect the invention.   There are two conventions, the Patent Cooperation Treaty and the European Patent Community, which allow a single application to be filed and processed in a single Patent Office.  However, once the patentability of the invention has been determined, then individual patents, based on the single application, must be filed for each country where patenting is sought.

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