Our U.S. Constitution grants Congress the power to enact laws relating to patents. Specifically, Article I, Section 8 of the U.S. Constitution states that "Congress shall have power... to promote the progress of science and useful arts, by securing for limited times to ... inventors the exclusive right to their ... discoveries."
35 U.S.C. § 154 (a)(1) states "every patent shall contain ... a grant to the patentee ... of the right to exclude others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States and, if the invention is a process, of the right to exclude others from using, offering for sale or selling throughout the United States, or importing into the United States, products made by that process ...." A common misunderstanding is that a patent to an invention grants a monopoly to the inventor. The "right to exclude others" is not a grant of a monopoly to the inventor or an exclusive right of the inventor to practice the invention. Indeed, an inventor who has been granted a patent may not be able to practice his or her invention without infringing the rights of an earlier patent to another person. A crude example may be helpful to understanding why the "right to exclude others" is not a monopoly. Assume that Barry invented a rotary dial telephone and applied for a patent. The USPTO examined the patent application and granted Barry a patent. Consumers loved the dial telephone and purchased millions of dial telephone from Barry. Ten (10) years later, Andy made an improvement to the dial telephone by inventing a push button telephone and then applied for a patent. The USPTO examined the patent application and determined the push button telephone to be a new and non-obvious over a dial telephone and granted Andy a patent. The public loves the push button telephone and wants to purchase the push button telephone and not the dial telephone. So, who has the right to make, use, and sell push button telephones? Most people would say that Andy has the right to sell push button telephones. The answer, however, is that neither Barry or Andy have the exclusive right to sell a push button telephone. Why? Barry has the "right to exclude others" from making a dial telephone and Andy has the "right to exclude others" from making a push button telephone. Barry cannot sell a push button telephone without infringing Andy's patent covering a push button telephone. Andy cannot sell a push button telephone without infringing Barry's patent to a dial telephone because the claims of Barry's patent cover any type of device that allows one person to communicate with another person. In that the public wants the better mouse trap (i.e, the push button telephone), Barry and Andy must enter into some type of licensing agreement whereby one or both are allowed the make, use, and sell push button telephones. The "right to "exclude others" is the underpinning for patent law. For example, the "right to exclude others" is the main reason why a person should conduct a"freedom to operate search" before starting to make, use and sell an invention that he or she has made, irregardless of whether or not the person applied for and was granted a patent to the invention.
In the United States, there are primarily two (2) types of patents: utility patents and design patents. An utility patent protects the structure and function of a product, machine and/or process. There are two (2) types of utility patent applications. A provisional utility patent application and a non-provisional utility patent application. In contrast, a design patent protects the ornamental appearance of a product. Utility patents and design patents are described in more detail at the following links:
• Utility Patents
• Provisional Patent Applications
• Design Patent