Free Patent Advice* - Q & A
What is a US patent?
A patent is a property right in an invention given by the Government to an
inventor. More specifically, US patents are issued by the United States Patent
and Trademark Office (USPTO).
Specifically, a patent provides a detailed description of the invention, which
includes how to use and make the invention. Therefore, once an invention is
patented, it is disclosed to the public. If you wish to keep your idea a secret, it
is more appropriate to protect your invention under Trade Secret Law.
The term of a patent is for 20 years from the date of filing for the patent (14
years for design patents). After the term of the patent expires, the owner of
the patent loses the right to exclude others from making, using, selling, and
importing the invention. For patents filed prior to June 8, 1995, a different
patent term exists.
Is it safe to delay filing for a patent?
An individual may keep her invention confidential for a period to perfect the
invention. However, delay in filing a patent application may lead to the loss in
the right to patent the invention. An inventor may lose this right for many
reasons beyond the scope of this answer. For example, the inventor may lose
the right to patent the invention if another individual discloses the invention to
the public.
In the case of not being able to afford to file a US patent application, an
inventor may seek a provisional patent application on her invention. The
provisional patent application gives the inventor a year to raise money to
afford filing a US patent application (i.e. nonprovisional application).
If you are an individual seeking financing for production and marketing of
your invention, it is helpful to secure your intellectual property rights prior to
soliciting investors.
What is patentable?
The USPTO grants utility patents to individuals who invent or discover any
new and useful process, machine, manufacture, or compositions of matter, or
any new and useful improvement thereof.
Recently, courts have held that computer software and business methods are
patentable.
The USPTO grants design patents to individuals who designed a new, original
and ornamental design for an article of manufacture. In other words, a design
patent protects the appearance of the article.
Plants are also patentable and have a similar patenting process to designs.
What if someone makes, uses, sells, or imports my patented invention?
You can initiate a lawsuit against the person making, using, selling, or importing
your invention. The cause of action is often referred to as "patent
infringement."
A patent infringer is usually liable for actual damages plus profits of the
infringer. Furthermore, an infringer could be held liable for injury to business
reputation or the dilution in the value of the patent. The Plaintiff may also be
awarded litigation costs and attorneys' fees under certain circumstances.
Who may obtain a patent?
The USPTO grants a patent only to the true inventor or the assignee of the
rights in the patent (If the inventor has died, then his estate may receive the
patent). An inventor may assign her rights in a patent to another individual or
organization.
When must I seek a patent?
In general, you must file for a patent within one year of the date the invention
was in public use or on sale in the United States. To clarify, if the invention
has been described in any printed publication anywhere in the world, or if the
invention has been offered for sale anywhere in the United States, for more
than one year prior to the time an application for the patent has been filed, you
lose your right to patent the invention.
What does the term "patent pending" mean?
The terms " patent pending" and "patent applied for" commonly means that
an individual has filed a patent application on a product or method.
Fraudulent use of the terms often result in penalties.
Can patent rights be bought and sold?
Yes, if you are an inventor you may assign all or part of your interest in a
patent application or patent to any individual or organization.
Who should file and write a patent application?
A United States Patent and Trademark Office Registered Patent Attorney or
Agent. An inventor may also file her own patent application; however, experts
strongly advise against such a practice. Even if you feel competent in technical
writing or the basics of patent law, filing your own patent application is a
serious risk that usually leads to a relatively worthless or invalid patent at best.
To become a Registered Attorney or Agent an application must apply for
admission and pass the Patent Bar Exam. The Patent Bar Exam is a rigorous
test covering patent law and procedure, and has a passing rate lower than most
state bars. In addition, the applicant must have a technical background
approved by the USPTO.
A patent lawyer that has not been registered by the USPTO cannot file your
patent application.
A patent lawyer differs from a patent agent in that a patent lawyer has earned a
Juris Doctorate from an accredited law school. In Florida v. Sperry, the US
Supreme Court held that a patent lawyer could hold herself out as a patent
attorney without having been admitted to a state bar. However, it is important
and ethical that the patent lawyer clarify her bar admission status.
*Please note that the that the above information is a comment on patent
law and practice in general (common patent questions and answers)
and should not be cited or used as authority for making serious legal
decisions. Every case has a unique set of facts and the answers to the
questions above are not an adequate substitute for legal counseling.
_______
_____________________________________________________________________________________________________________________________________________________________________________________
| PO BOX 220661, CHICAGO, IL 60622-0661 • Ph: 312-399-5229 • Fax: 312-421-2038 |
| Edlavitch| |
| Intellectual Property & Commercial Law |
___________________________________
_________________________________________________________________________________________________________________________________________________________________________________________________
 |
| |
 |
| |
 |
| |
 |
| |
 |
___________________________________________________________________________________________________________________________________________
| |Law |
____________________________________
___________________________________
____________________________________
____________________________________
____________________________________