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The answers to
the following questions should be read as preparatory rather than as
definitive.
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What
is a patent?
A
property right granted by the Government of the United States of America
to an inventor “to exclude others from making, using, offering for
sale, or selling the invention throughout the United States or importing
the invention into the United States” for a limited time in exchange
for public disclosure of the invention when the patent is granted.
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What
can be patented?
“Anything
under the sun that is made by man.” New and useful process, machine,
article of manufacture, composition of matter, or any new and useful
improvement thereof. But, there is further levels of analysis
required…for an invention to be patentable it must be: Novel, Useful
and Non-obvious to one having ordinary skill in the pertinent art at the
time the invention was made.
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What
cannot be patented?
Interpretations
of the statute by the courts have defined the limits of the field of
subject matter that can be patented, thus it has been held that the laws
of nature, physical phenomena, and abstract ideas are not patentable
subject matter.
A
patent cannot be obtained upon a mere idea or suggestion. The patent is
granted upon the new machine, manufacture, etc., as has been said, and
not upon the idea or suggestion of the new machine. A complete
description of the actual machine or other subject matter for which a
patent is sought is required.
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What do the terms
"patent pending" and "patent applied for" mean?
They
are used by a manufacturer or seller of an article to inform the public
that an application for patent on that article is on file in the U.S.
Patent and Trademark Office. The law imposes a fine on those who use
these terms falsely to deceive the public. |
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When
should I use patent marking and
patent pending?
A patentee who makes or sells patented
articles, or a person who does so for or under the patentee is required
to mark the articles with the word “Patent” and the number of the
patent. The penalty for failure to mark is that the patentee may not
recover damages from an infringer unless the infringer was duly notified
of the infringement and continued to infringe after the notice.
The marking of an article as patented
when it is not in fact patented is against the law and subjects the
offender to a penalty. Some persons mark articles sold with the terms
“Patent Applied For” or “Patent Pending.” These phrases have no
legal effect, but only give information that an application for patent
has been filed in the USPTO. The protection afforded by a patent does
not start until the actual grant of the patent. False use of these
phrases or their equivalent is prohibited.
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Who
can apply for and own a patent?
The
actual inventor(s). According to the law, only the inventor may
apply for a patent, with certain exceptions. If a person who is not the
inventor should apply for a patent, the patent, if it were obtained,
would be invalid. The person applying in such a case who falsely states
that he/she is the inventor would also be subject to criminal penalties.
If the inventor is dead, the application may be made by legal
representatives, that is, the administrator or executor of the estate.
If the inventor is insane, the application for patent may be made by a
guardian. If an inventor refuses to apply for a patent or cannot be
found, a joint inventor or, if there is no joint inventor available, a
person having a proprietary interest in the invention may apply on
behalf of the non-signing inventor. An
inventor may transfer all or part of his or her interest in the patent
application or patent to a legal entity by an assignment. An
assignment is a transfer of ownership of a patent application or patent
from one entity to another. Assignments should be recorded with the
USPTO Assignment Services Division to maintain clear title to pending
patent applications and patents.
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What
is a provisional application for a patent?
Since June 8, 1995,
the USPTO has offered inventors the option of filing a provisional
application for patent which was designed to provide a lower cost first
patent filing in the
United States
and to give
U.S.
applicants parity with foreign applicants. Claims and oath or
declaration are NOT required for a provisional application. Provisional
application provides the means to establish an early effective filing
date in a patent application and permits the term “Patent Pending”
to be applied in connection with the invention. Provisional applications
may not be filed for design inventions.
The filing date of a
provisional application is the date on which a written description of
the invention, drawings if necessary, and the name of the inventor(s)
are received in the USPTO. To be complete, a provisional application
must also include the filing fee, and a cover sheet specifying that the
application is a provisional application for patent. The applicant would
then have up to 12 months to file a non-provisional application for
patent as described above. The claimed subject matter in the later filed
non-provisional application is entitled to the benefit of the filing
date of the provisional application if it has support in the provisional
application. If a provisional application is not filed in English, then
any non-provisional application claiming priority to the provisional
application must have a translation of the provisional application filed
therein. See title 37, Code of Federal Regulations, Section 1.78(a)(5).
Provisional
applications are NOT examined on their merits. A provisional application
will become abandoned by the operation of law 12 months from its filing
date. The 12-month pendency for a provisional application is not counted
toward the 20-year term of a patent granted on a subsequently filed
non-provisional application which relies on the filing date of the
provisional application.
A surcharge is
required for filing the basic filing fee or the cover sheet on a date
later than the filing of the provisional application.
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If
two or more persons work together to make an invention, to whom will the
patent be granted?
If each had a share in
the ideas forming the invention as defined in the claims - even if only
as to one claim, they are joint inventors and a patent will be issued to
them jointly on the basis of a proper patent application. If, on the
other hand, one of these persons has provided all of the ideas of the
invention, and the other has only followed instructions in making it,
the person who contributed the ideas is the sole inventor and the patent
application and patent shall be in his/her name alone. |
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How
long does patent protection last?
Utility
and plant patents are granted for a term which begins with the date of
the patent and usually ends 20 years from the filing date, subject to
the payment of maintenance fees. The term for Design patents is 14 years
from the date the patent is granted,
no maintenance fees are required for a design patent. PCT
application reserves right to file patent in over 100 countries for up
to 2.5 years from
U.S.
filing date.
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Are
there any state government agencies that can help me in developing and
marketing of my invention?
Yes.
In nearly all states there are state planning and development agencies
or departments of commerce and industry which seek new product and new
process ideas to assist manufacturers and communities in the state. If
you do not know the names or addresses of your state organizations you
can obtain this information by writing to the governor of your state. |
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