1. What Is Patent Law?
2. Which Inventions Are Patentable?
3. How to Apply For a Patent
4. Types of Patent Applications
5. Contact an Attorney

What Is Patent Law?

Patent law refers to the branch of law that dictates the rules on patents. Congress enacted the patent laws in the United States under its authority to protect inventors and their inventions. This authority is granted by the U.S. Constitution.

The Patent Act (35 U.S. Code) governs patents in the United States.

A patent is the means by which an inventor is granted an exclusive property right to the advantages of a discovery, invention, or improvement for a certain period of time. The U.S. Patent & Trademark Office (USPTO) grants patents.

The patent owner possesses the right to stop or prevent other parties from exploiting their patented invention for commercial purposes. Patent protection signifies that other parties cannot commercially make, distribute, use, or sell the invention without permission from the patent owner.

Which Inventions Are Patentable?

For an inventor to receive a patent, the idea, discovery, or invention must be patentable. An invention is considered patentable by nature if the following is true:

  • An individual skilled in the relevant field must be able to use and make the invention
  • The invention must be novel
  • The originality and novelty of the invention must be evident (the invention must be something that any individual skilled in the relevant field could have come up with)
  • The invention must be useful

Patents generally don't offer protection for ideas. Rather, patents offer protection for inventions that are patent eligible. In the United States, there is a fairly broad interpretation of what is considered eligible for protection. Processes, machines, and compounds are all eligible for protection. 

Genetically engineered living organisms are eligible. Business methods and software are also eligible. However, in the past, it was much easier to obtain software patents. To patent software now, the inventor needs to file a very detailed description of the technology underlying the software. Even manmade DNA is eligible for protection in some cases.

Many people who are thinking about patenting their invention find it more helpful to have access to a list of what is not eligible for a patent. Naturally occurring phenomena, abstract ideas, laws of nature, and naked business methods are all ineligible for patents. Naked business methods refer to methods that don't depend on an apparatus or machine. Other things that are not eligible for protection are inventions that can only be used for illegal purposes, human organisms, tax strategies, and atomic weapons. Human organisms likely encompass fetuses and embryos.

How to Apply For a Patent

Patent law specialists can search through a database of all the patents to determine if an invention is truly novel. If an invention seems to be unique, a patent application can be filed for the invention. Detailed drawings and specifications should be included in the application.

Only the inventor can fill out and submit the application for the patent. The only exception to this rule is that an attorney can prepare and submit the application on behalf of the inventor. However, the attorney must be registered to practice before the United States Patent and Trademark Office. Upon a successful application, the inventor receives a legal document that contains a precise description of the nature of the patent, how to use it, and how to make it. This legal document gives the patent holder the legal right to exclude other parties from using, making, or selling the invention for commercial purposes.

Types of Patent Applications

The types of patent applications offered by the USPTO are as follows:

  • Utility — Includes a machine, a process, compounds or mixtures (chemical formulas), and manufactured products
  • Design — A novel ornamental design for a product
  • Plant Inventions — New and distinct varieties of plants that reproduce asexually

The USPTO categorizes patent applications for plant and utility inventions into non-provisional and provisional applications. A provisional patent application can be filed for an invention that has not been disclosed to the public for at least a year from the filing date. The USPTO doesn't examine provisional patent applications. Rather, provisional patent applications are used to get a priority date. For ideas during the last few stages of development, these applications are useful for getting "patent pending" status. Inventors in the process of test marketing or raising capital also find provisional patent applications useful.

Contact an Attorney

If you need help with the law on patents, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.