A patent is a legal document that sets forth in writing a set of national legal exclusivity rights in an invention. A patent is acquired by filing a written application with the appropriate national government agency (e.g., the United States Patent & Trademark Office). A patent application must set forth a detailed description, drawings as needed, and a precise legal claim for the invention.
An examiner employed at the national government agency will examine the filed application to determine if it complies with the legal requirements for obtaining a patent in that jurisdiction. In the United States Patent & Trademark Office the examiners are employed in numbered “Technology Centers” which each deal with a particular area of technology (e.g., Technology Center 1700 covers Chemical and Materials Engineering). The examiners working in each Technology Center are then further divided into “Technology Groups”, with each Technology Group having an even more specific technological focus (e.g., Technology Group 1720 is for Fuel Cells, Battery, Flammable Gas, Electrophotography, Photolithography). Patent applications are matched to examiners based upon the subject matter of the application matching that of the Technology Group.
In general, the primary legal requirements that an examiner checks for are that the claimed invention is (1) eligible subject matter, (2) novel, and (3) non-obvious. If a claimed invention is a useful process, machine, article of manufacture, or composition of matter, then in general it is eligible subject matter. Note that this covers an enormous amount of subject matter because so many things can be described as fitting into one of these broad categories. A claimed invention will be novel if the same invention wasn’t already in the prior art (i.e., it wasn’t already known at the time the application was filed). A claimed invention will be non-obvious if the differences between the invention and what is in the prior art would not have been obvious to those having skill in the art.
It is quite common during the patent application examination process to receive rejections of an application for allegedly failing to meet one or more of the legal criteria. However, if through amendment and/or arguments the government examiner is ultimately persuaded that all of the legal criteria for a valid patent are satisfied, then the application will be allowed to issue as a patent.
Once issued, the set of national legal exclusivity rights the owner of an issued patent enjoys typically includes the exclusive right, within national boundaries, to make, use, offer to sell, sell, and import the invention claimed in the patent. These exclusive rights exist for a fixed period. For U.S. utility and plant patents the time is typically 20 years from the date the application was filed. For U.S. design patents the term is 15 years from the date of issue.
The exclusive rights of a patent may be sold or licensed by the owner, in whole or in part. They may also be enforced by the patent owner through the courts against those who infringe upon the rights without permission of the patent owner. An infringer of a patent could be held liable in a patent infringement lawsuit for monetary damages (no less than a reasonable royalty in the U.S.), punitive damages if the infringement was willful, and the attorney fees and court costs of the patent owner. In addition, the infringer may be subject to court injunction barring the infringer from any further use or sale of the invention.
It is important to note in today’s global economy that there is no such thing as a “worldwide” patent. Each nation issues its own patents and has its own system for the enforcement of patent rights. There are patent treaties between countries, including the Patent Cooperation Treaty (“PCT”) which establishes a system for the filing of a single “international patent application” that can be used in multiple jurisdictions. However, any person who wants patent rights in a country for an invention must obtain patent protection from the national government of that country, and if necessary enforce those patent rights in that country.