A patent is the appropriate protective means for practical inventions in the "useful arts." There are three types of patents:
- Utility patents apply to new and useful processes, machines, articles of manufacture, compositions of matters, or any new and useful improvements thereof;
- Design patents apply to new, original, and ornamental designs for articles of manufacture; and
- Plant patents apply to asexually reproduced, distinct and new varieties of plants.
INVENTIONS THAT CANNOT BE PATENTED
The Supreme Court acknowledged that Congress intended statutory subject matter under 35 U.S.C. 101 to "include anything under the sun that is made by man." The Court has also acknowledged that there are exceptions to 35 U.S.C. 101 and identified the following as not being patentable subject matter.
- Laws of nature (e.g. scientific principle);
- Physical phenomena (e.g. magnetism, gravity);
- Abstract ideas (e.g. printed matter, algorithms etc.);
- Naturally occurring article (e.g. minerals).
Some computer programs can be patented if the program or software affects hardware or process. Computer programs and algorithms can alternatively be protected by copyrights or by trade secret law. Printed materials such as books can be copyrighted. In addition, living organisms and methods of treating human diseases are not patentable in some countries.
INVENTORSHIP VS. AUTHORSHIP
A patent application must be filed by the actual inventor(s) of the claimed subject matter. This is based on 35 U.S.C. 101 which states that "whoever invents or discovers" is the one who "may obtain a patent thereof."
An inventor is defined as one who contributed to the conception of an original and non-obvious idea that is the invention. The claims in a patent application are the foundation of the invention as defined in the U.S. Code, and therefore, should be used as the criteria in determining inventorship.
When a person was actively involved in the experimental efforts, but did not initially contribute to the conception of the invention described in the patent application, he/she is not considered an inventor. Since "conception" is the basis of inventorship, a person simply working under the direction of an inventor, but who did not contribute to the overall conception of the invention, could be named as a co-author of a publication, but should not be named as a co-inventor in a patent application.
A patent is an exclusionary right - it gives the right to exclude others from infringing on the patent, but that does not necessarily give the owner of the patent the right to exploit the patent.
For example, many inventions are improvements of prior inventions which may still be covered by someone else's patent. If an inventor takes an existing patented mouse trap design, adds a new feature to make an improved mouse trap, and obtains a patent on the improvement, he or she can only legally build his or her improved mouse trap with permission from the patent holder of the original mouse trap, assuming the original patent is still in force. On the other hand, the owner of the improved mouse trap can exclude the original patent owner from using the improvement.
