What Is Patentable Under U.s. Law


What we need to do first is to answer the question of, what is a patent? Simply put a patent is the sole right granted by the U.S. Government to the inventor of the patented item to exclude all others from making, using, offering it for sale, or for selling the patented invention in the United States or importing the invention into the United States. In total, it gives the item’s inventor total control over the invention and total rights as to who if anyone, can use it. This right is valid for 20 years from the filing date but is in general only legally enforceable from the date the patent is approved by the U.S Patent and Trademark Office.

The rules further state that a patentable invention can be “any new and useful process, machine, manufacture, or composition of matter or any new and useful improvement thereof”. While you might think that this means just about anything can be patented, there are a few criteria that must be met. Specifically, patentable inventions must meet three primary characteristics: they must be novel, they must be useful, and they must not be obvious. The novelty requirement is straightforward; the item must be unique. The useful requirement is broken down into two parts; the invention must perform a useful function, and it must actually perform its intended purpose. The purpose can literally be anything. If the office thinks your invention might not do what you claim, they may ask you to prove that it does. As an example of this, the office actually received an application for a starship WARP drive; a spaceship engine that warped space-time to provide the ship’s movement, instead of ejecting matter from the engine. Even though the application contained paragraph after paragraph of complex technical data the office was skeptical of whether the device illustrated was actually able to perform any useful function. As a consequence, they politely asked the inventor to provide them with a functional working model for testing. Unfortunately, the inventor never followed through and the patent was never issued. The last requirement is somewhat fuzzy in the law. It means that your invention must be different enough from what is out there to be seen as new or an improvement.

Are business methods patentable? Patent law in the U.S. does recognize four large categories eligible for patent protection. Processes, machines, articles of manufacture and compositions of matter. This goes hand in hand with the often quoted recognition that anything under the sun that is made by man can be patented. Since a business method is a process we should take this statement at face value and say that yes a business method is likely to be patentable. On the question of can a patentee sue an entire industry in a single lawsuit. The answer appears to be no. In the America Invents Act signed into law if by Barrack Obama the act clearly states it only permits one lawsuit against multiple defendants only if there is the same transaction or occurrence and if the fact questions common to all defendants. On the question of can one recover fees for frivolous litigation? Yes, because under Fox v. Vice the court ruled that a defendant is entitled to recover, under 42 U.S.C. section 1988, the portion of its attorney’s fees that would not have been incurred but for the frivolous claims.