COSC3325						3/24/2005

	Patent Laws	
	   Website: WWW.USPTO.GOV   
	   1. US Laws 
		US Constitution, Article 1, Section 8
		"Congress shall have power ... to promote the science and
		 useful arts, by securing for limited times to authors and
		 inventors the exclusive right to their respective writings and 
		 discoveries"
	   	The first patent law was enacted in 1790. The patent laws underwent a 
		a general revision in 1953 and codied into Title 35, US Code.
		Additionally, on 11/29/1999, Congress enacted the American Inventors
		Protection Act of 1999(AIPA), which further revised the patent laws.

	      The patent law specifies the subject matter for which a patent may be
	      obtained and the conditions for patenability. The law establishes
	      The United States Patent and Trademark Office to administer the law
	      relating to the granting of patents and contains various other provisions
	      relating to patents. 
	   
	   2. Treaties
	      Paris Convention for the Protection of Industrial Property adhered by 140 countries.
	      It provides that each county guarantees to the citizens of other countries
	      the same rights in the patents and trademark matters that it gives to
	      its own citizens.
	      It also provides for the right of priority in the case of patents, trademarks
	      and industrial design (design patents). This right means that, on
	      the basis of a regular first application filed in any member countries,
	      the applicant may, within a certain time period, apply for protection
	      in all other member countries. These later applications will then be
	      regarded as if they had been filed on the same day as the first application.
	      Thus, these later applications will have priority over application
	      for the same invention that may have been filed during the same time period
	      by other persons. Moreover, these later applications will not be 
	      invalidated, on the basis of the first application, by any acts 
	      accomplished in the interval, such as publication or exploitation
	      of the invention, the sale of copies of the design or use of the trademark.   

	      Patent Cooperation Treaty of 1978 adhered to by some 90 countries
	      facilitates the filing of applications of patent on the same invention
	      in member countries by providing, among others, for centralized filing
	      procedures and standardized application format.
	      Under the US law, in many cases of inventions made in the United
	      States,  it is necessary to obtain a license from the Director of 
	      USPTO before applying for a patent in a foreign cuntry. 

	   3. Differences among copyright, patent and trademark
	      a. Patent
	      A patent for an invention is a property right to the inventor, issued by the United 
	      States Patent and trademark Office. Generally, the term of a new 
	      patent is 20 years (except 14 years for Design Patent) from the date 
	      on which an application for the patent was files in the United States or
	      in special cases from the date an earlier related application was files.
	      US patent grants are only effective in the US, US Territories, and US 
	      Possessions. Under certain circumstances, patent term extensions or 
	      adjustments are available.
	      The right conferred by a patent grant is "the rights to exclude others from
	      making, using, offering for sale, or selling" the invention in the United States or
	      "importing" the invention into the United States. What is granted is not
	      the right to make, use, offer for sale or import, but the right to exclude
	      others from making, using, offering for sale, selling or importing.	
	      Once a grant is issued, the patentee must enforce the patent without the
	      aid of the USPTO.
	      There are three types of patents:
	      Utility patents may be granted to anyone who invents or discovers any new and
	      useful process, machine, article of manufacture or compositions of matters
	      or any new useful improvement thereof. (Primary patent)
	      Design patent may be granted to anyone who invents a new, original, and ornamental design
	      for an article of manufacture.	
	      Plant patent may be granted to anyone who invents or discovers and asexually reproduces any
	      distinct and new variety of plants.
	      b. Trademark or Servicemark
	      A trademark is a word, name, symbol or device that is used in trade
	      with goods to indicate the source of goods and distinguish them from the goods of others.
	      A servicemark is the same as a trademark except that it identifies and distinguishes
	      the source of a service rather than a product.
	      Trademark rights may be used to prevent others from using a confusingly 
	      similar mark, but not to prevent others from making the same goods or
	      from selling the same goods or services under a clearly different mark.
	      Trademarks used in interstate or in foreign commerce may be registered with
	      the USPTO. 
	      c. Copyright
	      Copyright is a form of protection provided to the authors of 
	      "original Works of authorship" including literary, dramatic, musical, 
	      artistic, and certain other intellectual works such as computer
	      programming, both published and unpublished.
	      The 1976 Copyright Act generally gives the owner of copyright the exclusive right
	      to reproduce the copyrighted work, to prepare derivative works, to distribute
	      copies or phonorecords of copyrighted works, to perform copyrighted work publicly,
	      or to display copyrighted work publicly.
	      The copyright protects the "Form of Expressions" rather than the subject matter
	      of the writing. 
	      For example, a description of a machine can be copyrighted.
	      But this will only prevent others from copying the description.
	      It will not prevent others from writing a description of their own
	      or from making and using the machine. Copyright is registered with
	      the Copyright Office of the Lbrary of Congress. 
	      
	   4. Subject matter
	      The patent law specifies the general field of subject matter that can be patented
	      and the conditions under which a patent may be obtained.
	      Any person who invents or discovers 
		any new and useful process
		any new and useful machine
		any new and useful manufacture
		any new and useful composition of matter, or
		any new and useful improvement thereof
	      can obatain a patent, subject to the conditions and requirements of the law
	      The word "process" is defined by law as a process, act, or method,
	      and primarily includes industrial or technical processes.
	      The word "manufacture" refers to articles that are made, and includes all
	      manufactured articles.
	      The term "composition of matter" relates to chemical compositions and may
	      includemixtures of ingredients as well as new chemical compounds.
	      These classes of subject matter taken together include practically everything
	      that is made by man and processes for making the products.

	      Exceptions:
		a. The Atomic Energy Act of 1954 excludes the patenting of inventions useful solely in the utolization
	           of special nuclear material or atomic energy for atomic weapons.
	        b. Limits of subject matter that can be patented:
		     mathematical formulas
		     laws of nature
		     physical phenomena
		     abstract ideas 
		   All for lack of usefulness.

	   5. Required conditions:
		Useful
		Novel
		Non-obvious
	
		Useful: refers to the condition that the subject matter has a 
		useful purpose and also includes operativeness, that is, a machine
		that will not operate to perform the intended purpose would not be called
		useful and therefore would not be patented.
		Novel: New and innovative as an invention cannot be patented
		  a. if the invention was known or used by others in this country
		     or patented or described in a printed publication in this or 
		     a foreign country before the invention thereof by the applicant
		     for the patent, or
		  b. if the invention was patented or described in a printed publication
		     in this or a foreign country or in public use or on sale in this country
		     more than one year prior to the application for patent in the United States.
		Non-obvious: Sufficiently different from most similar inventions.
		For example, the substitution of one color for another or changes in
		sizes are not ordinarily patentable.
		
  	   6. Nature of patent and Patent rights
	      The patent is issued in the name of the United States under the seal of the
	      United States Patent and Trademark Office, and is either signed by the Director
	      of the USPTO or is electronically written thereon and attested by an Office offficial.
	      The patent contains a grant to the patentee, and a printed copy of the specification
	      and drawing is annexed to the patent and forms a part of it.
	      The grant confers "The right to exclude others from making, using,
	      offering for sale, or selling the invention throughout the United States or
	      importing the invention into the United States" and its territories and possessions
	      for which the term is generally 20 years from the date of the application
	      filed in the United States or if the application contains a specific reference to
	      an earlier filed application, from the date of the earliest such 
	      application and subject to the payment of maintenance fees as provided by law.
	      The patent does not provide the right to make, use, offer for sale, or sell
	      or import the inventionbut only grants the exclusive nature of the right.
	      Any person is ordinarily free to make, use, offer for sale, or sell
	      or import anything he/she pleases, and a grant from the government is
	      not necessary.
	      The patent only grants the right to exclude others from just doing that.
	      Since the patent does not grant rights to do those things, the patentee's own 
	      right to do so depends on the rights of others and whatever general laws might
	      be applicable.
	      A patentee, merely because he/she has received a patent for an invention, is
	      not thereby authorized to do those things if doing so would violate any
	      law.
	      An inventor of a new automobile who has obtained a patent thereon would
	      not be entitled to use the patented automobile in violation of the laws of a state 
	      requiring a license, nor may a patentee sell an article, the sale of which may be forbidden by a law, merely
	      because a patent has been obtained.
	      The term (20 years for utility and plant patents, 14 years for design patent)
	      can be extended or adjusted for certain pharmaceuticals and for certain
	      circumstances as provided by law.
	      A maintenance fee is due for all utility patents 3 1/2, 7 1/2 and 11 1/2
	      years after the original grant was issued when the application was
	      filed after 12/12/1980.

	   7. Design Patent: Non-functional or non-structural
	      a. To any person who has invented any new and non-obvious ornamental design
	         for an article of manufacture.
	         This patent only protects the appearance of an article but not its structural or functional
	         feature.
	      b. Normally, a term of 14 years and no maintenance fee required.

	   8. Plant Patent.
	      a. To anyone who has invented and discovered and asexually reproduced any
	         distinct  and new variety of plant, including cultivated sports, mutants,
	         hybrids, and newly found seedlings, other than a tuber-propagated 
	         plant or a plant found in an uncultivated state.
	      b. Asesually propagated plants are those that are reproduced by means  other than
	         from seeds, such as by the rooting of cuttings, by layering, budding, grafting,
	         inarching, etc.
	      c. As for Tuber-propagated plants for which a patent cannot be obtained,
	         the term "Tuber" is used  in its narrow horticultural sense as meaning a short, 
	         thickened portion of an underground branch. Examples of these
	         tuber-propagated plants include the Irish potato and Jerusalem artichoke.
	      d. Term is 20 years and no maintenance fee required.