Sections 1 through 42 establish the United States Patent and Trademark Office. The USPTO is responsible for granting and issuing patents and registering trademarks.
Patentability
An invention must meet several requirements to be eligible for a patent. The invention must concern patentable subject matter. The invention must be novel and the application for a patent on the invention must be timely. The invention must be non-obvious. Finally, the invention must be sufficiently documented.
Section 101
35 U.S.C. 101 Inventions patentable. This may seem expansive, but certain subject matter are not eligible, what are called 101 judicial exceptions. The below is a quotation from the Manual of Patent Examining Procedure :
Section 102
, entitled "Conditions for Patentability", describes some of the conditions when a patent should not be granted to an inventor based on the concept of novelty. These conditions generally relate to when an invention is already known publicly. Each subsection of section 102 describes a different kind of prior art which can be used as evidence that an invention is already public. This includes inventions that have already been described in other patent applications or publications. It also includes inventions that have been on sale for more than a year before a patent application was filed. Netscape Commc'ns Corp. v. Konrad is an example of a case that focuses on the public use and on-sale criteria of this section. This section of US code was affected by the America Invents Act. The most important part of section 102 now reads as follows: NOVELTY; PRIOR ART.—A person shall be entitled to a patent unless— The full text can be found at the Conditions for patentability; novelty and loss of right to patent. A person shall be entitled to a patent unless - Sections 102, and are the most important considerations when determining patentable subject matter during patent prosecution.
Section 103
describes the condition of patentability referred to as non-obviousness. This provides that a patentable invention must not have been obvious to a "person having ordinary skill in the art" in view of the appropriate prior art. The most important judicial decision in interpreting 35 USC 103 is Graham v. John Deere Co.. And more recently KSR v. Teleflex in which the Supreme Court of the United States reaffirmed Graham v. Deere and moved away from reliance on the TSM test. , reads as follows: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made. The most important section of is 103: 35 U.S.C. 103 Conditions for patentability; non-obvious subject matter. The full text of this section of the statute can be found
Section 112
dictates the form and content of the specification and the form and content of the patent application's claims. The first paragraph introduces 3 legal concepts, the written description requirement, the enablement requirement, and the best mode requirement. The second paragraph limits the ability of claims to be too open-ended or unclear. reads as follows: The pre-AIA version of section 112 is not substantially different from this.
