US Patent - Substantive Law

Substantive Law

Under Title 35 of the United States Code, the patentability of inventions is defined under Sections 100-105. Most notably, section 101 sets out subject matter that can be patented; section 102 defines novelty and loss of right to patent; section 103 lists what constitutes non-obvious subject matter.

The United States Constitution, Section 8, allows Congress to grant patents: "by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" without limiting such rights to product developers. Just as there is no legal requirement that owners of real property develop their vacant land, there is likewise no legal requirement that patent owners develop their inventions.

Since the inception of patent laws in keeping with the Constitution, the U.S. Congress implemented these protections as a "first to invent" system. This type of system was markedly different from other national patent laws: the person determined to be the first inventor was deemed the actual inventor regardless of who happened to file first. However on September 16, 2011, the 112th Congress replaced the "first to invent" system with the "first inventor to file" system through the enactment of the Leahy-Smith America Invents Act on September 16, 2011. This new system is to be fully implemented by March 2013. The provisions of the law are laid out in Title 35 of the United States Code (U.S.C.) and give authority for the United States Patent and Trademark Office. The goal of this revision has been stated to be the harmonization of U.S. law with other countries' patent laws.