Q. What are patents?

A. A patent is a right granted by the government to an inventor to exclude others from making, using, or selling the invention claimed in the patent deed.  There are three types of patents: (1) utility patents, which cover inventions that function in a unique manner to produce a utilitarian result, (2) design patents, which cover the visual characteristics displayed by an object and relate to configuration, shape, or surface ornamentation, and (3) plant patents, which cover asexually reproducible plants. 

For an invention to be patentable, it must fall within one of five statutory categories:  processes, machines, manufactures, compositions of matter, and any new and useful improvement thereof.  In interpreting these categories, the Supreme Court has broadly stated that Congress intended anything under the sun that is made by humans to be patentable except for fundamental principles, namely, “laws of nature, natural phenomena, [or] abstract ideas.”  Diamond v. Diehr, 450 U.S. 175, 185 (1981). 

To be patentable, the invention must also satisfy the “novelty” and “nonobviousness” requirements of the patent laws. Regarding novelty, a patent will be denied if the subject matter of the invention was known or used by someone other than the inventor in the U.S. before the inventor’s date of invention, or if the subject matter was patented or described in a printed publication by someone other than the inventor anywhere before the inventor’s date of invention.   Regarding nonobviousness, a patent will be denied where the difference between the subject matter and the previous inventions and knowledge (termed “prior art”) are such that the subject matter as a whole would have been obvious to one of ordinary skill in the technology (termed “art”) to which the subject matter pertains. 

In general, utility and plant patents expire 20 years after the date of filing, while design patents expire 14 years from the date of issuance.

Last updated May 22, 2009.


Allen M. Lee  Mr. Lee’s practice focuses on business, corporate and intellectual property matters, including the creation, protection and exploitation of intellectual property assets.  He counsels clients on business formation, general corporate matters, trademark, copyright, trade secret, patent, licensing, internet and domain name issues, among other things.  For more information contact: Allen M. Lee, a Professional Law Corporation, Tel: (650) 254-0758, Fax: (650) 967-1851, Email: allen@allenmlee.com, Internet: www.allenmlee.com.




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