Читать книгу Intellectual Property Law for Engineers, Scientists, and Entrepreneurs - Howard B. Rockman - Страница 20

A U.S. patent grant covering your invention can only be obtained from the U.S. government, namely, the United States Patent and Trademark Office (USPTO), currently located across the river from Washington, D.C. in Alexandria, Virginia. Most of the business of the USPTO is conducted electronically, and patent and trademark applications can be filed, examined, and prosecuted online. In foreign nations too, patents are granted only by the nation’s government. Each country’s patents are enforceable only in the issuing country and its territories. There are also a few regional patent systems—such as the one controlled by the European Patent Office (EPO), which issues patents enforceable in each country of the European Union. In the United States, the Patent Law is found at Title 35 of the United States Code, a body of laws periodically enacted and amended from 1790 to the present by the U.S. Congress, as mandated by Article 1, Section 8, of the U.S. Constitution. These U.S. laws define what can and cannot be patented, the conditions and requirements for obtaining a patent grant on patentable subject matter, the rights granted by a patent, the ability of a patent owner to enforce the exclusive rights embedded in the patent grant, and the ability of a patent owner to license or transfer ownership of the intangible rights embedded in the invention and patent grant for monetary consideration.

As mentioned briefly in the preceding text, patents are granted on “new and useful processes, machines, manufactures or compositions of matter, or any new and useful improvement thereof” (35 U.S.C. §101). Designs of utilitarian articles of manufacture may also be protected by a Design Patent. Recent court decisions have held that anything “new” made by man or woman falling within the definition of 35 U.S.C. §101, quoted earlier, can be the subject of a patent. This includes new forms of animal life, for example, the Harvard Mouse, which is particularly susceptible to cancer and therefore valuable in research, and the modified E. coli bacterium, which produces insulin. Also, more recently, novel and unobvious methods of conducting business have also been pronounced to be the subject of patents, as well as software under certain circumstances, as discussed in detail later in this text. By way of comparison, any material that appears naturally in nature cannot be the subject of a patent, since it was not “invented” by the alleged inventor. Also, pure abstract ideas and concepts that have no “physical” embodiment are not protectable under the patent laws. However, as discussed later, a novel concept embodied in a new and useful device or procedure may come close to being fully protected by effective and creative patent application and claim drafting.

An issued patent grant describes and illustrates the covered invention, and its advantages over the “prior art,” and also includes specifically worded “claims” that define the metes and bounds of the protection afforded by the patent grant. If a competing device or process falls within the definition set forth in a patent’s claim or claims, or comprises equivalent structure, the competing device infringes the patent. However, I am getting ahead of myself—the topic of patent infringement will be covered later.