Specialist Series: Patents

What is a U.S. patent?

A patent is a property right. The property right granted is an exclusionary right, i.e., the right to exclude others from making, using, offering for sale, or selling an invention. In the US, generally this exclusionary right lasts for 20 years from the date of the initial filing of an application with the US Patent and Trademark Office (USPTO). Thus, a commercial entity who owns or has rights to an issued US patent has the right to exclude others from commercializing the patented invention. When referring to the “patented invention”, we refer to a Specification, which discloses the invention, and one or more claims listed at the end of a patent. The claims in a patent define the scope of the protected subject matter.

How does the USPTO determine what is patentable?

The USPTO reviews or “examines” the patent application to determine whether each, or any, of the claims meet the requirements for patentability. A patent will only be granted if the claims are adequately supported within the boy of the application (i.e., the Specification) and convey subject matter that is novel and non-obvious as of the filing date of the application. The USPTO reviews scientific publications, prior patents, and published patent applications to determine whether an invention is novel and non-obvious. An invention is considered novel if it is new and not previously accessible to the public.  If an invention is not readily derived from that which is already known and accessible to the public, then it will be deemed non-obvious. When assessing whether to pursue patent protection, it is important that the inventor have an understanding of whether their invention can meet these requirements.