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The Constitution of the United States gives Congress the power to enact
laws relating to patents, in Article I, section 8, which reads "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." Under this power
Congress has from time to time enacted various laws relating to patents.
The first patent law was enacted in 1790. The law now in effect is a
general revision which was enacted July 19, 1952, and which came into
effect January 1, 1953. It is codified in Title 35, United States Code.
The patent law specifies the subject matter for which a patent may be
obtained and the conditions for patentability. The law establishes the
Patent and Trademark Office for administering the law relating to the
granting of patents, and contains various other provisions relating to
WHAT CAN BE PATENTED
The patent law specifies the general field of subject matter that can be
patented and the conditions under which a patent may be obtained.
In the language of the statute, any person who "invents or discovers any
new and useful process, machine, manufacture, or composition of matter,
or any new and useful improvements thereof, may obtain a patent,"
subject to the conditions and requirements of the law. By the word
"process" is meant a process or method, and new processes, primarily
industrial or technical processes, may be patented. The term "machine"
used in the statute needs no explanation. The term "manufacture" refers
to articles which are made, and includes all manufactures articles. The
term "composition of matter" relates to chemical compositions and may
include mixtures of ingredients as well as new chemical compounds. These
classes of subject matter taken together include practically everything
which is made by man and the process for making them.
The Atomic Energy Act of 1954 excludes the patenting of inventions
useful solely in utilization of special nuclear material or atomic
energy for atomic weapons.
The patent law specifies that the subject matter must be "useful." The
term "useful" in this connection refers to the condition that the
subject matter has a useful purpose and also includes operativeness,
that is, a machine which will not operate to perform the intended
purpose would no be called useful, and therefore would not be granted a
Interpretations of the statute by the courts have defined the limits of
the field of subject matter which can be patented, thus it has been held
that methods of doing business and printed matter cannot be patented.
In the case of mixtures of ingredients, such as medicines, a patent
cannot be granted unless there is more to the mixture than the effect of
its components. (So called patent medicines are ordinarily not
patented; the phrase "patent medicine" in this connections does not have
the meaning that the medicine is patented.) A patent cannot be obtained
upon a mere idea or suggestion. The patent is granted upon the new
machine, manufacture, etc., as has been said, and not upon the idea or
suggestion of the new machine. A complete description of the actual
machine or any subject matter sought to be patented is required.
NOVELTY AND OTHER CONDITIONS FOR OBTAINING A PATENT
In order for an invention to be patentable it must be new as defined in
the patent law, which provides that an invention cannot be patented if--
"(a) The invention was known or used by others in this country, or
patented or described in a printed publication in this or a foreign
country, before the invention thereof by the applicant for patent, or
"(b) The invention was patented or described in a printed publication in
this or a foreign country or in public use or on sale in this country
more than one year prior to the application for patent in the United
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 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 valid 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 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
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 so that it may be said to be unobvious 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.
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