How Patent Rights Are Acquired

Patents are governed exclusively by federal law, and rights in patents arise from Article I, Section 8 of the U.S. Constitution, which provides that ''Congress shall have power to promote the progress of science and useful arts, by securing for limited times to . . . inventors the exclusive right to their . . . discoveries.'' There is no such thing as a state patent. Whereas rights in trademarks arise from the moment a trademark is used, and copyright rights arise the moment a work is created in fixed form, patent rights do not arise unless the PTO grants a patent after an application is filed. Patent statutes are found in Title 35 of the United States Code, Sections 100, et seq. (www4.law.cornell.edu/uscode).

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