Article 1, Section 8, Clause 8 of the United States Constitution gives to the United States Congress the power to “promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

Using the power granted by the United States Constitution Congress created three types of patent protection: Utility Patent, Design Patent and Plant Patent.

The Utility Patent

The utility patent is the most common type of patent protection. To qualify for a utility patent, a claimed invention must have utility and be both novel and non-obvious as defined by Title 35 United States Code and Title 37 Code of Federal Regulations. The types of inventions that may be considered for patent protection include, but are not limited to, a machine, an article of manufacture, a composition of matter, a process or method and an improvement of an existing invention. Following the procedures promulgated by 35 U.S.C. and 37 C.F.R., a patent application describing each invention may be submitted to the United States Patent and Trademark Office (USPTO) for consideration and examination by an examiner competent in the applicable technology. If the patent application successfully survives the examination process, a United States Patent may be allowed for the invention described by the patent application.

It is worth noting that Congress has determined that certain circumstances may prevent or disqualify an applicant from receiving a patent on a claimed invention. These “loss of right” circumstances are defined by 35 U.S.C. and 37 C.F.R. and include, but are not limited to, the offer for sale/public use/publication of the invention more than one year prior to the filing of the patent application, abandonment of the invention by the applicant and not being the actual or true inventor of the invention.

The Design Patent

A design patent allows an inventor to obtain patent protection for the features or appearance of an object or article. To qualify for a design patent a claimed invention must be novel, non-obvious and non-functional as defined by Title 35 United States Code and Title 37 Code of Federal Regulations.

The Plant Patent

A plant patent allows a person who has invented or discovered and asexually reproduced any distinct and new variety of plant (other than a tuber propagated plant or a plant found in an uncultivated state) to obtain patent protection subject to the conditions and requirements of Title 35 United States Code and Title 37 Code of Federal Regulations.

It is highly recommended that anyone who desires or has any questions regarding patent protection obtain the advice of a register patent attorney. Failure to do so may result in loss of rights. The Law Offices of Steven McHugh can answer any questions you may have regarding patent protection.