The U.S. Constitution and Patent Law
- The right of individuals to patent their inventions is derived from the U.S. Constitution in Article I, Section 8, which gives Congress the authority 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." Copyright law was also derived from this Constitutional provision.
The First Patent Law
- In 1790, three years after Congress was given the authority to create patent law, the first patent act was passed. Three years later, inventor Thomas Jefferson drafted another law that replaced the first patent act. It was in these formative measures of legislation that the groundwork for securing a patent was laid and which is still reflected in the current Patent Act. Early law required that to receive a patent, the invention had to be a utility, plant or design. Three other criteria were required of the invention: it had to be useful, or in the case of a design patent, ornamental. The invention had to be novel compared to existing inventions. Finally, it had to be nonobvious to a person "of ordinary skill." While it's hard to conceive of an invention that meets these criteria, consider the effect startlingly unique inventions such as the electric light bulb and the telephone had on the consumer market.
Subsequent Patent Act Revisions
- Federal patent law was revised when the first patent office was created in 1836, and then again in 1870 and 1897. The last major revision to patent law was in 1952. While there have been modifications to update the law to include new patentable inventions, such as computer programs, the legislation enacted in 1952 provides the basic framework for current Patent Law. Since the 1950s, the largest revision to patent law was through the American Inventors Protection Act of 1999. Some of the provisions in this act protect inventors from unscrupulous marketing services, reduce some patent fees, permit an infringement defense for an inventor who first developed and commercially used his invention, and extend a patent's term when the U.S. Patent and Trademark Office was responsible for a delay in its issuance.
Patents and Other Intellectual Property Law
- Copyright and trademark law confers on authors and trademark holders certain exclusive rights. For example, a copyholder has the exclusive right to reproduce and sell copies of his work of authorship or perform or display it, while a trademark holder has the right to use his mark to identify himself or his business with his goods and services. Both copyright and trademark law provide remedies against infringement should another author or trademark holder commandeer these rights. However, patent law is far more powerful in the rights it grants to a patent-holder: the right of exclusion.
Right of Exclusion
- The Patent Act grants inventors the right to enjoin (prevent) other inventors from making, selling or using an invention that infringes on their own, even if the other invention was created completely independently without knowledge of an existing invention. When considering if one invention infringes on another, courts first look for direct infringement--if the two inventions are markedly the same or perform the same function. However, the court will also apply the "doctrine of equivalents." If an invention varies only slightly in the way it is made, it might infringe on an invention already patented.
- Before the United States and other countries signed the GATT Uruguay Round agreement, patents had a maximum duration of 17 years. However, effective Jan. 1, 1995, this term was extended under GATT to 20 years from the filing date for most patents (design patents last 14 years). Under the Orphan Drug Act, drugs used to treat rare diseases have patent protection for six years, but only if the drug is used to treat less than 200,000 people. After a patent expires, it falls into public domain and anyone can freely make, market and sell the invention.