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| A patent is a property right granted by the Federal Government that permits the patent owner to prevent all others, for a limited time, from making, using, offering for sale or selling the invention throughout the United States. In return for the patent grant, the inventor must provide a public disclosure of the invention in the form of the issued patent. |
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| To be patentable, an invention must be novel, useful and non-obvious. To qualify for patent protection, an invention does not have to be totally new. It can be an improvement on existing items or methods. Even a small decorative or functional improvement may be patentable. |
| Patent protection is available for three broad categories of inventions: |
- Utility patents protect new and useful processes, machines, articles of manufacture, or chemical compounds or mixtures.
- Plant patents protect new varieties of asexually reproduced plants.
- Design patents protect new, original and ornamental designs for an article of manufacture.
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| Losing Your Rights to a Patent |
Your highly valuable rights can be lost by public exposure. In the U. S., public exposure greater than one year prior to filing a patent application can cause you to lose your rights to a patent. In many foreign countries, any public exposure prior to the application filing can result in you losing all rights to the invention and allowing others free use of your invention.
Any public disclosure of your invention, by voice, internet, use, radio or television could affect your chances of getting a patent. Always get a non-disclosure agreement signed prior to communicating your idea to anyone.
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| How Long is My Patent Protected? |
| The term of a utility or plant patent is generally 20 years from the date the patent application is filed, providing the periodic maintenance fees are paid. Limited extensions are available for application filed after November 28, 2000 in cases where the Patent Office caused the delay. The term of a design patent is 14 years from the date the patent is granted and there are no maintenance fees required. |
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Before applying for a patent, it is recommended that the inventor know as much as possible about what has already been invented (“prior art”). If your invention is already shown in a prior U. S. or foreign patent, or other printed publication or public disclosure, it may well affect whether you are entitled to patent protection. In addition, if someone “skilled in the art” of your area of invention would consider your invention obvious in light of what’s already known, then a patent would be unobtainable.
Therefore, learning about what has already been patented will assist you in making an educated decision on whether top apply for a patent or not. It will also help in preparing the patent application, as the inventor has a duty to disclose the prior art to the Patent Office. In addition, knowing what the prior art is will aid you in distinguishing your invention from the prior art in the text and drawings of your application.
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A patent application must fully describe the invention in enough detail to enable a person of ordinary skill in the art, or field of invention, to make and use the invention without undue experimentation. The inventor must disclose the best manner of practicing the invention known at the time the application is filed. The application must further include one or more claims that particularly point out and distinctly claim what is regarded as the invention.
The function of the claim language serves two purposes. It used to distinguish the invention from the prior art and to define the patents scope. The claims define the parameters, “or metes and bounds”, of the patentee’s exclusive rights. Anything outside of those parameters are in the public domain and free for anyone to use.
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| Patent Prosecution Process |
After a non-provisional application is filed, it is then reviewed by a patent examiner to determine if the invention and the application meets the statutory requirements. The examiner and the applicant’s attorney then usually engage in a dialogue regarding the application. This can include amendments to the claims to clarify or narrow the invention, or arguments to persuade the examiner that the invention is truly novel or useful. The resulting written record of communications and amendments become part of the prosecution history of the invention.
As part of the application, the applicant must disclose to the examiner all of the material prior art that the applicant is aware of. The examiner searches the patent office files for prior art patents, but the applicant is often in a better position to know what exists in the real world that is relevant to the claimed invention. Failure to bring to the examiners attention all of the relevant information is a violation of the duty of candor to the patent office and is referred to as inequitable conduct. If it is proven in litigation that the applicant committed inequitable conduct during the prosecution of the patent, the patent will be rendered unenforceable.
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| Background |
A U.S. patent will only protect you against others from making, selling or using your invention within the borders of the United States. It will not protect you outside the United States. Therefore, in addition to applying for a U.S. patent, you should consider seeking patent protection in other countries. Foreign filing not only increases your patent protection, but also increases the market value of your idea.
Many countries will allow you to claim priority from your U.S. application for utility patents provided that you do so within one year from your original filing date in the U.S. If you filed for a design patent, you are advised to file corresponding foreign patent applications within six months from your U.S. filing date.
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| The International Application |
The international application is based upon the Patent Cooperation Treaty, or PCT. A PCT application allows you to reserve the right to file a utility patent in over 100 countries for up to two and one-half years from your initial filling.
A PCT application should be filed within a year from the date of your initial application, in order to claim priority from your earliest application. At the very latest, it must be filed before your U.S. patent application is published because many countries will not allow patent protection once an idea is made public. In the U.S., patent applications are published either when they issue or at 18 months from the original application date.
In most cases, a year is not enough time to decide where you will need foreign patent protection. However, a PCT application is a great way to plan for foreign patents without having to choose which specific countries you want to seek protection in. With a PCT application, you do not need to decide where to file specific foreign patent applications for up to thirty months from your earliest official U.S. application filing date.
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| Immediate Foreign Protection |
| There are many countries, like Canada and Mexico, that have not signed on with the PCT. As both of these countries are logical expansion markets from the United States, it may make good business sense to apply for patent protection in these or other countries immediately. |
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