If the invention has been described in a printed publication anywhere in the world, or if it has been in public use or on sale in this country before the date that the applicant made his/her invention, a patent cannot be obtained. If the invention has been described in a printed publication anywhere, or has been in public use or on sale in this country more than one year before the date on which an application for patent is filed in this country, a patent cannot be obtained. In this connection it is immaterial when the invention was made, or whether the printed publication or public use was by the inventor himself/herself or by someone else. If the inventor describes the invention in a printed publication or uses the invention publicly, or places it on sale, he/she must apply for a patent before one year has gone by, otherwise any right to a patent will be lost.
Even if the subject matter sought to be patented is not exactly shown by the prior art, and involves one or more differences over the most nearly similar thing already known, a patent may still be refused if the differences would be obvious. The subject matter sought to be patented must be sufficiently different from what has been used or described before that it may be said to be nonobvious to a person having ordinary skill in the area of technology related to the invention. For example, the substitution of one material for another, or changes in size, are ordinarily not patentable.
The United States Patent and Trademark Office
Congress established the United States Patent and Trademark Office to issue patents on behalf of the Government. The Patent and Trademark Office as a distinct bureau may be said to date from the year 1802 when a separate official in the Department of State who became known as “Superintendent of Patents” was placed in charge of patents. The revision of the patent laws enacted in 1836 reorganized the Patent and Trademark Office and designated the official in charge as Commissioner of Patents and Trademarks. The Patent and Trademark Office remained in the Department of State until 1849 when it was transferred to the Department of Interior. In 1925 it was transferred to the Department of Commerce where it is today.
The Patent and Trademark Office administers the patent laws as they relate to the granting of patents for inventions, and performs other duties relating to patents. It examines applications for patents to determine if the applicants are entitled to patents under the law and grants the patents when they are so entitled; it publishes issued patents and various publications concerning patents, records assignments of patents, maintains a search room for the use of the public to examine issued patents and records, supplies copies of records and other papers, and the like. Similar functions are performed with respect to the registration of trademarks. The Patent and Trademark Office has no jurisdiction over questions of infringement and the enforcement of patents, nor over matters relating to the promotion or utilization of patents or inventions.
The head of the Office is the Assistant Secretary of Commerce and Commissioner of Patents and Trademarks, and his staff includes the Deputy Assistant Secretary of Commerce and Deputy Commissioner of Patents and Trademarks, several assistant commissioners, and other officials. As head of the Office, the Commissioner superintends or performs all duties respecting the granting and issuing of patents and the registration of trademarks; exercises general supervision over the entire work of the Patent and Trademark Office; prescribes the rules, subject to the approval of the Secretary of Commerce, for the conduct of proceedings in the Patent and Trademark Office, and for recognition of attorneys and agents; decides various questions brought before him by petition as prescribed by the rules; and performs other duties necessary and required for the administration of the Patent and Trademark Office.
The work of examining applications for patents is divided among a number of examining groups, each group having jurisdiction over certain assigned fields of technology. Each group is headed by a group director and staffed by examiners. The examiners review applications for patents and determine whether patents can be granted. An appeal can be taken to the Board of Patent Appeals and Interferences from their decisions refusing to grant a patent, and a review by the Commissioner of Patents and Trademarks may be had on other matters by petition. The examiners also identify applications that claim the same invention and initiate proceedings, known as interferences, to determine who was the first inventor.
In addition to the examining groups, other offices perform various services, such as receiving and distributing mail, receiving new applications, handling sales of printed copies of patents, making copies of records, inspecting drawings, and recording assignments.
At present, the Patent and Trademark Office has about 5,700 employees, of whom about half are examiners and others with technical and legal training. Patent applications are received at the rate of over 200,000 per year. The Patent and Trademark Office receives over five million pieces of mail each year.