Congress has specified that a patent will be granted if the inventor files a timely application which adequately describes a new, useful and unobvious invention of proper subject matter. To be timely, an application must be filed within one year of certain acts (by the inventor or others) which place the invention in the hands of the public i.e., patented or published anywhere in the work, on sale or in public use in this country. This one-year grace period, however, is not available in most foreign countries. A U.S. inventor who wants to obtain corresponding foreign patents must first file an application in the U.S. before any divulgation, whether in written or oral form, of the invention to the public. The description of the invention in the application must be complete enough to enable others to practice the invention. Moreover, the application must describe the best manner ("best mode") known to the inventor of carrying out the invention. The described invention must be new i.e., not invented first by another or identically known or used by others in this country or patented or published anywhere in the world before the actual invention date (not the application filing date). The invention also must be useful i.e., serve some disclosed or generally known purpose.
The requirement of unobviousness means that the differences between the invention and the prior public knowledge in its technical field must be such that a person having ordinary skill in this field would not have found the invention obvious at the time it was made. The proper subject matter of a patent is any product, process, apparatus or composition, including living matter such as genetically engineered bacteria or plants. Special provisions also permit patents directed to certain distinct and new varieties of plants (Plant Patent) and new original and ornamental designs for articles of manufacture (Design Patent). However, the vast majority of the patents applied for and granted are utility patents, and the information presented here will focus on the utility patent.
Purely mental processes, newly discovered laws of nature and methods of doing business are not proper subjects for a patent. Initially, computer programs were treated as mental processes, and were not patented; the only form of protection afforded programs was the copyright. However, since the early 1980s, software has been regarded as a proper subject for patenting, and the number of software patents has been growing year after year.
Components of a Utility Patent Application
The PTO filing fee of $385 is due at the time of filing, and the PTO issue fee of $645 is due when the application is allowed (approved), which may be many months later. After the patent issues, PTO maintenance fees are due as follows: $510 at 3.5 years, $1,025 at 7.5 years, and $1,540 at 11.5 years. You may choose not to pay the maintenance fees, but your patent will expire.
