| A patent is a negative property right granted by a
government that gives the owner the exclusive right to keep others from
making, using, or selling a product that infringes upon any claim
contained in the patent. Patents are issued for the public good
recognizing that unless a manufacturer is given some assurance of
exclusivity, the cost of taking a new and innovative product to market may
be prohibitive. As property, patents can be sold, assigned, or licensed.
Commercialization may be accomplished by the owner exercising the
exclusive rights referred to above or by permitting others to exercise
rights under the terms of one or more licenses.
Under United States standards of patentability, all patent applications
are examined for novelty, utility, and non-obviousness. The applicant,
usually through a patent attorney or agent, must establish these elements
to the satisfaction of the U.S. Patent and Trademark Office before the
patent is allowed. Novelty means the invention is new; that is, it has not
been previously used, sold, or described publicly or through written
publication. Utility means that the invention has use and is not just a
subject for additional research. In regard to the third requirement, the
invention must be non-obvious to a person having ordinary skill in the art
to which it pertains.
For patent applications filed before June 8, 1995, U.S. utility patents
are granted for a period of 17 years from the issue date of the patent.
For patent applications filed after June 8, 1995, U.S. utility patents are
granted for a period of 20 years from the date of application. Design
patents are issued for a term of 14 years from the date of issue. The life
of certain drug patents may be extended a few years under limited
conditions. The duration of foreign patents varies widely from country to
country.
Patent laws set forth those classes of inventions eligible for
patenting. Statutes provide that any inventor who "invents or
discovers a new or useful process, machine, manufacture, or
composition-of-matter, or any new and useful improvement thereof, may
obtain a patent therefore, subject to the conditions and requirements of
the law". The scope of statutory patentable classes of inventions has
been expanded to include life forms resulting from genetic engineering.
U.S. law also allows patenting of new varieties of asexually produced
plants, other than tuber-propagated plants, or plants found in an
uncultivated state. Plant Variety Protection Certificates are available
from the U. S. Department of Agriculture for sexually produced plants.
Things that cannot be patented in the United States include:
- Theories
- Ideas
- Plans of action
- Discoveries of laws of nature or scientific principles
- Things immoral or injurious to health and the good of society
- Sexually reproduced plants.
Patents and publications are closely related, both represent means of
disseminating the results of research. A patent, however, is a specialized
form of publication which describes an invention to the world at large in
return for a limited period during which others can be excluded from using
the patented information. However, care must be taken against premature
disclosure of an invention (by publication in a scientific or technical
journal or through public use) in order to avoid placing the invention in
the public domain and thus losing the right to obtain a patent.
Patent rights under sponsored research agreements are generally
negotiated before the agreement takes effect. It is important that these
agreements reserve patent rights for the University. Inventions arising
from federally sponsored research are governed by Public Law 96-517 as
amended by Public Law 98-620, which allow universities to retain rights to
these inventions while reserving certain rights for the government. These
laws are issued as 37 Code of Federal Regulations Chapter IV, Part 401. |
