A Patent is a propitiatory right granted by federal government pursuant to laws passed by Congress. Patents, which convey to the owner exclusive rights to the claimed invention, are granted to inventors who file an application with the United States Patent and Trademark Office (USPTO). There are three types of patents available in Unites States 1) Utility Patent which covers the functional aspects of products and processes 2) Design Patent which covers the ornamental design of useful objects 3) Plant Patent which covers a new variety of living plant. Each confers “the right to exclude others from making, using, offering for sale ” or selling the invention in the United States or importing the invention to the United States. Generally speaking when one speaks of a patent “generically” the reference is to a utility patent .

It is important to notice that patent however do not protects ideas, but rather protect inventions that exhibit subject matter deemed allowable. In other words, any exclusive right you obtain can only protect something that is considered patent eligible. Even living organism that have been genetically engineered in a laboratory can be protected . Business method are also available protection in United States Software is likewise eligible, although obtaining a software patent in the United States is not as easy as it once was and the application you must file will need comprehensive discussion of the underlying technology. Even some man-made DNA can be protected.


But where does this power of Congress come from? The simple answer is that it comes directly from the U.S. Constitution.

The reason the U.S. Constitution grants the congress to legislate in the area of intellectual property is to “promote the progress of science and useful arts”. It is interesting to notice that the word “science” refers to protection of copyrightable subject matter and term “useful art” refers to protection of invention. Unlike most of the enumerated powers granted to congress in the Constitution the Intellectual Property Clause is a qualified grant of power which does limit Congressional discretion in at least some ways. Notwithstanding the evolution of constitutional language exclusive right are provided for for a limited time as an incentive to inventors, entrepreneurs and corporations to engage in research and development, to spend the time, energy and capital resources necessary to create useful inventions; which will hopefully have a positive effect on society through the introduction of new products and processes of manufacture into the economy, including life saving treatments and cures.

The reward of a patent, together with the requirement of utility, novelty and non-obviousness represents a delicate balance struck between the need to encourage innovation and avoidance of exclusive rights that stifle competition without providing any advantage to society. In implementing the permissive Constitutional authority, Congress is free to place requirements upon the acquisition of exclusive rights that further the goals of the clause, while at the same time not compromising the specific dictates of the grant of power. In any event, if creations are to be copyright able they cannot be useful and must have some designs features that exists separately from any utilitarian feature. Likewise with copyright there is no endeavor to quantify or qualify artist merit prior to a copyright attaching to an original, copyright able creation.  Nevertheless, the remaining two requirements, namely the novelty and non-obviousness requirements, can be analogized with the single constitutional requirement for copyrights, namely originality. The purpose of the novelty and non-obviousness requirements is to ensure that an invention does indeed exist. Similarly, the purpose of the originality requirement is to ensure that something worthy of copyright protection has been created. The invention and creation requirements find commonality in that only creations of the mind that are fresh, unfamiliar and different are deserving of intellectual property protection.