Patent Law in the United States
Need more Guidance?
See our new Guidance on Patent Applications Patent Application Guidance
The following resources on patent law are provided by Bitlaw:
- Summary and Detailed Explanations of Patent Law (below)
- Guidance on Filing A Patent Application (index below)
- Guidance on Patent Prosecution--Section 101 and Patent Subject Matter Eligibility (index below)
- Section 101 Index (materials relating to patent eligibility under section 101)
- U.S. Patent Act (Jan. 2018)
- U.S. Regulations relating to patents (Jan. 2018)
- MPEP: Manual of Patent Examining Procedure (9th Ed., Rev. 08.2017--Jan. 2018)
Summary of Patent Law
Patents have been in the news recently as Apple and other technology companies have used patents to obtain monopoly rights in certain inventions. Although many object to anyone having a monopoly on an idea or invention, such rights have always been a fundamental part of the patent system. The importance of granting monopolies for new inventions has been recognized in the United States since the adoption of the U.S. Constitution. In Article I, section 8, the U.S. Constitution:
Congress shall have 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.
Patents in the United States are governed by the Patent Act (35 U.S. Code), which established the United States Patent and Trademark Office (the USPTO). The most common type of patent is a utility patent. Utility patents have a duration of twenty years from the date of filing, but are not enforceable until the day of issuance. Design patents protect ornamental designs. Plant patents protect new varieties of asexually reproducing plants.
To obtain protection under U.S. law, the applicant must submit a patent application to the USPTO, where it will be reviewed by an examiner to determine if the invention is patentable. U.S. law grants to patentees the right to exclude others from making, using, or selling the invention.
The written discussion of patent law in BitLaw is divided into the following sections:
- Requirements for protection under U.S. patent law
- Applying for a utility patent
- Provisional patent applications
- Examination of patent application in the U.S. patent office
- Patent issuance
- Rights granted by a U.S. patent
- Design patents
- Applying for protection under international patent laws
- Discussions on software patents
Guidance on Filing A Patent Application
These pages provide guidance on filing a patent application with the United States Patent and Trademark Office.
What is a patent application?
What rights are created by a patent?
What if you cannot afford to enforce your patent rights?
What are the benefits of patent pending status?
What makes patent application so expensive?
What is the cost breakdown of a patent application?
What is the cost of a design patent application?
Can't I get a cheaper patent somewhere else?
How to identify your invention (not my proposed product)?
How to value your invention
Should you trust invention submission companies?
What difference do the "first to file" laws make?
What are the deadlines for filing a patent application?
Do you need to create a working model of your invention?
What is a patentability search?
How can searches avoid wasteful patent applications?
How can searches improve a patent applications?
When is a search unnecessary (or even unhelpful)?
What is a provisional application?
Do provisional applications save money?
What are the benefits of a provisional application?
Can I file a provisional application without an attorney?
Guidance on Patent Prosecution--Section 101 (Patent Subject Matter Eligibility)
The following pages provide guidance on how to analyze and respond to section 101 rejections at the patent office, or section 101 claims of invalidity against issued patents.
Section 101 Rejections
Four statutory categories under Section 101
Non-statutory exceptions to subject matter eligibility
Overview of the Alice text
Overview of step one of the Alice test
Analyzing step one for abstract ideas
Analyzing step one for natural phenomena
Applying the Markedly Different Characteristics test
Overview--Searching for an "inventive concept"
Evaluating the "conventionality" of the claim elements
What is enough for inventive concept?
The machine-or-transformation test
Responding to a statutory rejection (outside four categories)
Proving patent eligibility under step one
Proving patent eligibility under step two