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10 | Patent it YOURSELF • Utility Patents: As we’ll see in Chapters 8 to 10, a utility patent, the main type of patent, covers inventions that function in a unique manner to produce a utilitarian result. Examples of utility inventions are Velcro hook-and-loop fasteners, new drugs, electronic circuits, software that is tied to some form of hardware, semiconductor manufacturing processes, new bacteria, newly discovered genes, new animals, plants, automatic transmissions, Internet techniques and methods of doing business (provided physical things are involved), and virtually anything else under the sun that can be made by humans. To get a utility patent, one must file a patent application that consists of a detailed description telling how to make and use the invention, together with claims (formally written sentence fragments) that define the invention, drawings of the invention, formal paperwork, and a filing fee. Again, only the actual inventor can apply for a utility (or any other) patent. The front or abstract page of a typical utility patent is illustrated in Fig. 1A. • Design Patents: As discussed in more detail in Chapter 10, a design patent (as opposed to a utility patent) covers the unique, ornamental, or visible shape or surface ornamentation of an article or object, even if only on a computer screen. Thus if a lamp, a building, a computer case, or a desk has a truly unique shape, its design can be design patented. Even computer screen icons and an arrangement of printing on a piece of paper can be patented. The design must be for an article that is different from an object in its natural state; thus a figure of a man would not be suitable for a design patent but if the man is an unnatural position, this can be patented. For an example, see patent Des. 440,263 (2001) to Norman. However, the uniqueness of the shape must be purely ornamental or aesthetic and part of an article. If the design is functional, then only a utility patent is proper, even if it is also aesthetic. A good example is a jet plane with a constricted waist for reducing turbulence at supersonic speeds: Although the novel shape is attractive, its functionality makes it suitable for a utility patent only. A useful way to distinguish between a design and a utility invention is to ask, “Will removing or smoothing out the novel features substantially impair the function of the device?” If so—as in the jet plane with the narrowed waist—this proves that the novel features have a significant functional purpose, so a utility patent is indicated. If not—as in a woodshop wall clock that is shaped like a circular saw blade, or a phone that is shaped like a shoe—a design patent is indicated. Two useful questions to ask are: ■■ ■■ Is the novel feature(s) there for structural or functional reasons, or only for the purpose of ornamentation? and Does the novel feature make it look better or work better? (If the novel feature fulfills both purposes, the utilitarian function always prevails.) Sometimes the state of the art, rather than the nature of the novelty, will determine whether a design or utility patent is proper for an invention. If a new feature of a device performs a novel function, then a utility patent is proper. However, if the state of the art is such that the general nature of the feature and its function is old, but the feature has a novel shape that is an aesthetic improvement, then only a design patent will be proper. The design patent application must consist primarily of drawings, along with formal paperwork and a filing fee. • Plant Patents: A plant patent covers asexually reproducible plants (that is, through the use of grafts and cuttings), such as flowers (35 USC 161). Sexually reproducible plants (that is, those that use pollination), can be monopolized under the Plant Variety Protection Act (7 USC 2321). Both sexually and asexually reproducible plants can now also be monopolized by utility patent (35 USC 101). Plant patents are a comparatively recent innovation (1930). Luther Burbank, the great botanist of Santa Rosa, California, goaded Congress to act, stating, “We plant inventors cannot patent a new plum, though the man who makes an automobile horn can get a patent and retire to Southern California and wear silk underclothes the rest of his life.” C. The Novelty and Unobviousness Requirement With all three types of patents, a patent examiner in the Patent and Trademark Office (PTO) must be convinced that your invention satisfies the “novelty” and “unobvious ness” requirements of the patent laws. The novelty requirement is easy to satisfy: Your invention must be different from what is already known to the public. Any difference, however slight, will suffice. (Note: When I refer to your invention, I am referring to the manner in which it is “claimed” in your patent. The claims, as we’ll discuss later, define your invention.) Novelty, however, is only one small hurdle to overcome. In addition to being novel, the examiner must also be convinced that your invention is “unobvious.” This means
ChAPtER 1 | INTRODUCTION TO PATENTS AND OTHER INTELLECTUAL PROPERTY | 11 Fig. 1A—Utility Patent Abstract Page
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C H A P T E R 7 What Should I Do Ne
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482 | Patent it YOURSELF A. Patent
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Nondisclosure Agreement 1. Parties.
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Invention Disclosure Sheet of Inven
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Form 3-4: Application Data Sheet—
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Positive and Negative Factors Evalu
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Consultant’s Work Agreement 1. Pa
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Searcher’s Worksheet Sheet of Inv
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Form 10-1A: Declaration for Utility
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Form 10-1A: Declaration for Utility
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Form 10-2: Utility Patent Applicati
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In the United States Patent and Tra
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they may do so with the written con
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Form 16-4: Recordation Form Cover S
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Universal License Agreement 1. Part
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whether or not any royalty payment
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Index A “A,” correct use of, 20
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INDex | 577 Biotechnology patents e
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Bestsellers The Small Business Star
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Online Legal Forms Nolo offers a la
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Keep Up to Date 1 Go to Nolo.com/ne
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About the Author David Pressman is
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