The Constitution gives 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.” Copyright covers the writers in that clause. Patents cover the inventors.

What a patent grants is often misunderstood. According to the U.S. Patent and Trademark Office, a patent gives its owner the right to “exclude others from making, using, offering for sale, or selling” an invention, or importing it into the United States. It is not a right to make or sell the invention. It is a right to stop others from doing so.

Three kinds of patents

The USPTO grants three types. Utility patents cover a new or improved and useful process, machine, article of manufacture or composition of matter. Design patents cover a new, original and ornamental design for a manufactured article. Plant patents cover a distinct and new variety of plant that has been invented or discovered and asexually reproduced.

Their terms differ. Under 35 U.S.C. § 154, a utility patent’s term begins when the patent issues and ends 20 years from the date the application was filed. The USPTO says utility and plant patents last up to 20 years from the first non-provisional filing, while a design patent runs 15 years from the date it is granted. Owners of utility patents must pay maintenance fees on a set schedule to keep them in force.

What can be patented

The basic rule is in 35 U.S.C. § 101: “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor.” The USPTO summarizes the conditions in four parts. The invention must be useful and work. The application must describe it clearly. It must be new. And it must not be obvious.

Each condition has its own statute. Under Section 112, the application must describe the invention in terms clear enough “to enable any person skilled in the art” to make and use it. Under Section 103, a patent is barred if the invention as a whole “would have been obvious” to a person having ordinary skill in the field. The USPTO notes that laws of nature, physical phenomena and abstract ideas cannot be patented, and neither can a mere idea or suggestion.

Section 102 gives inventors a one-year grace period: their own public disclosure made one year or less before the effective filing date does not count against them.

The atrium of the USPTO’s Madison Building in Alexandria, Virginia. Photo: Hamaxides via Wikimedia Commons, CC BY-SA 4.0.
The atrium of the USPTO’s Madison Building in Alexandria, Virginia. Photo: Hamaxides via Wikimedia Commons, CC BY-SA 4.0.

From application to grant

Patent examiners review applications in units organized by subject area and then grant or deny them. An applicant whose patent is denied can appeal to the Patent Trial and Appeal Board, which also resolves disputes over patents that have already been issued. The USPTO publishes most applications on or after 18 months from filing, and it publishes granted patents on their issue date.

The volume is large. According to the agency, it receives more than half a million patent applications each year. Its headquarters is in Alexandria, Virginia, with regional offices in Detroit, Dallas, Denver and San Jose.

The model room of the U.S. Patent Office in 1861. Photo: Unknown photographer, public domain via Wikimedia Commons.
The model room of the U.S. Patent Office in 1861. Photo: Unknown photographer, public domain via Wikimedia Commons.

Rights that stop at the border

A U.S. patent applies only in the United States and its territories and possessions. Inventors who want protection elsewhere must apply in each country or through a regional office such as the European Patent Office. Two treaties make that easier. Under the Paris Convention, an inventor who files first in one member country generally has 12 months to file in others and keep the original filing date. The Patent Cooperation Treaty, which more than 150 countries have joined, provides a single international application procedure.

The USPTO grants patents but does not enforce them. If someone infringes a patent, it is up to the owner to take legal action. When the term ends, the owner’s right to exclude others ends with it.

Cover photo: Thomas Edison’s patent drawing for an electric lamp, U.S. Patent No. 223,898 (1880). National Archives, public domain via Wikimedia Commons.

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