What is a patent?

 

A patent is a certificate issued by a sovereign state to an inventor of an invention or his/her employer (assignee), affording the inventor or the assignee an exclusive right to commercially utilize the invention for a period of time. A patent may also refer to the exclusive right afforded by such a certificate.

An invention is a new, non-obvious and implementable idea about a product (physical device) or a process (method).

A patent is a form of intellectual property right, and like other forms of intellectual property right such as copyright, trademarks, industrial design rights, refers to the ownership of some creation of the intellect of the creator.

Property right is a social arrangement in which someone’s possession of a thing is supposed to be recognized and respected by others. Thus, the precondition of a property right is the existence of some social consensus. In a state of mankind where the law of the jungle applies, everyone fights with each other to take possession of things by his strength, and there is no property right. As soon as some social consensus is formed about to whom a thing belongs, whether by agreement, acquiesce, coerce, custom, convention or law, the property right of a thing comes into existence.

Property right, by affording the right and benefits of property to its owner, to the exclusion of all others, is generally considered a prerequisite of social order, a foundation of civilization and conducive to social advancement.

A first form of property is movable property, which is characterized by its tangibility, movability, relatively independent existence, and its clear and definite boundary with its surroundings.

A second form of property is real estate, which is characterized by its tangibility, immovability, and the necessity to specify explicitly its boundary with its surroundings, generally by the sovereign state.

A third form of property is intellectual property, which is characterized by its intangible and abstract existence, and the absolute necessity to specify explicitly what it is and its scope.

A patent, in the form of a certificate issued by a governmental patent office of a sovereign state (and in a few cases such as in the European Union, issued by the European patent office), must include a specification of the invention to which the patent relates.

The specification was filed by the inventor or assignee (called applicant) to the patent office to undergo a process of examination (called prosecution) by an examiner of the patent office for eligibility of the invention for being granted a patent, during which the specification may be amended in one or more times, and finally be granted a patent or rejected.

The specification specifies what the invention is, and generally includes two parts. The first part is a description together with accompanying drawings which describe the technical field to which the invention belongs, the status quo of the technical field and related techniques, the overall architecture and all the constituent features of the invention, implementation details of the invention, and the advantages of the invention.

The second part of the specification is claims, which explicitly defines the invention and delineates the protection scope of the invention that is requested by the applicant in an accurate, clear, concise and formatted language. The claims are the most important part of the specification, for it is the claims that count during later enforcement of the patent right, that is, it is the claims that determine whether a competitor infringes on the patent.

A patent, as a specific form of intellectual property right, has both the common features of a property right, such as exclusivity with respect to other people, being granted by a sovereign state, and its own special characteristics, which include the following:

Novelty and non-obviousness: a patent can only be granted to a technical solution that is both new and nonobvious. An existing technical solution, or a technical solution that is too obvious to require any creativity on the part of the inventor, cannot be granted a patent. They belong to the domain of the general public, and cannot be owned exclusively by any one. Therefore, you cannot obtain a patent for an ordinary wheel.

Practicality: a patent is granted to a practical technique that can be applied directly in an industry, not to an abstract idea, a theory or a science discovery, although the later may have a great value and require utmost creativity on the part of the creator. Therefore, Newton’s laws and Einstein’s theory of relativity cannot be granted a patent.

Implementability: the invention that may be granted a patent must be implementable, and the implementation details must be described in the patent specification so as to enable an ordinary technician in the art to implement the invention, although the invention may not necessarily have been implemented. Therefore, a vague or incomplete idea about an invention cannot be granted a patent.

Principle of sovereignty: a patent is granted by a sovereign state, and is only valid within the boundary of this sovereign state. Therefore, the inventor or assignee may have to seek to obtain a patent in each country where he wants his invention to be protected.

Protection against commercial utilization: a patent only protects against commercial utilization of an invention. Therefore, a patented invention can be utilized freely without permission of the applicant for non-commercial purposes, such as education and research.