Consider shower heads. He thus developed the water-massaging head that causes the water to come out in spurts from various head orifices, thereby creating the massaging effect. Many widespread erroneous beliefs have abounded in the past which were just waiting to be shattered. In more recent times the medical establishment believed that ulcers were caused by stress and spicy foods, but Drs. Barry J. Marshall and J. Robin Warren of Australia discovered that a bacterium was the culprit, earning them a Nobel prize.
But even if you work in an established area, you will find plenty of opportunity for new inventions. Many inventors have discovered problems and come up with solutions by observing current events in the media. A number of years ago there were problems with medical personnel being stuck and infected by hypodermic needles that slipped or were used against them by disturbed patients. The result—a rash of patents on safety needles. Current problem areas such as terrorism, voting machines, alternative energy, identity theft and credit card fraud, and guerrilla warfare are creating potential markets for inventive individuals.
For example, a market exists for a simple, tamper-proof, easy-to-use voting machine or a foolproof way to vote online. Creativity is making the complicated simple. Many famous inventions have resulted from accident or coincidence. In the s the brothers W. Kellogg, who ran a health sanitarium in Battle Creek, Michigan, accidentally left some of their health bread dough out overnight. They tried to salvage the stale dough by rolling it into loaves but found that it flaked into small pieces. Instead of discarding the flakes, J. When Alexander Fleming accidentally contaminated one of his bacterial cultures with a mold, he was sufficiently alert and scientifically minded to notice that the mold killed the bacteria, so he carried this discovery forward and isolated the active ingredient in the mold, which later was named penicillin.
He chose not to patent it, so he got the fame, but not the fortune. And in , Georges de Mestral, after taking a walk in the forest of his native Switzerland, noticed some cockleburs had stuck to his pants. Being of scientific mind, he removed and examined them and figured out why they adhered so well. He applied his newly discovered knowledge and as a result invented and made a fortune from hook-and-loop fasteners, which his company sold under the trademark Velcro. In chemist Roy Plunkett, while experimenting with refrigerant fluids at a DuPont lab in New Jersey, left some fluorine-based gas in a freezer and came back to find a solid, slippery polymer that was extremely resistant to bonding and to which nothing would stick.
Wallace Carothers of Wilmington, Delaware. Using these techniques, many inventors have come up with valuable inventions and profitable ideas and marketing ploys. Why ramify? But give it a try anyway, and make sure you record in writing any ramifications you do come up with as soon as possible. There are several reasons: 1 To extend your monopoly and keep the gravy flowing longer; 2 To enhance your credibility as an inventor—if you have several patents it will make any infringer look worse in litigation and make it easier for you to win your lawsuit; 3 Improvement patents cut off avenues that another company can use to design around your base patent; 4 A bank or financier will be more likely to lend you money if you have several patents.
You need to build and test it to be aware of the working problems. Sticking to it is the genius! Genius is one percent inspiration and ninety-nine percent perspiration. Here are a few teasers:. You would make a ship sail against the wind and currents by lighting a bonfire under her decks? I pray you excuse me. I have no time to listen to such nonsense. Watson, IBM President Many have analyzed the creative process, but so far no one has come up with a foolproof recipe or technique for innovating. Following incubation, work on the problem again and insight may come, sometimes in bits and pieces.
But be patient, since the insight, which may be an image or a fantasy, will usually come thereafter. If you have creativity problems, such as how to make that great idea work, here are some specific techniques you can use to enhance your creativity, and hopefully solve that problem. Framing is another way of describing the way in which one looks at a situation. A common example of framing a problem occurs when you try to move a bulky sofa through a small doorway.
Use Your Right Brain : In the course of trying to solve a problem with an invention, you may encounter a brick wall of resistance when you try to think your way logically through the problem. Such logical thinking is a linear type of process that is, one step follows another , which utilizes our rational faculties, located in the left side of our brains.
However, when we need to deal with new information, ideas, and perspectives, linear thinking will often come up short. For this you will be most effective if you learn to operate in a nonlinear manner, that is, use your right brain or creative faculties.
In other words, try to think of the apparatus and your boating trip or hike simultaneously. Meditation : Another way to bring out your creativity is to meditate on the problem or meditate merely to get away from the problem. Either will help. As strange as it seems, some experts say that creativity can be enhanced during reverie by listening to a largo movement from a baroque symphony. When the spears came close, he saw that each had a hole near its tip. He awoke from the nightmare in terror, but soon realized the symbology: He put a hole near the tip of his bobbin needle and passed the thread through.
Again, the rest is history. To stimulate creative dreaming, first immerse yourself in the problem near bedtime. Then forget about it—do something completely different and go to sleep. Your subconscious will be able to work on the problem. Once they are written down, forget about them, go back to sleep, and try to figure them out in the morning.
Sometimes a week or more will pass before the meanings become clear. Or talk your dreams over with an equally inventive friend and see if he or she can get the meaning—sometimes talking about it helps. Group Brainstorming : If all else fails, get a group of friends or trusted associates together or on a computer network and throw the problem to the group. For some unknown reason, a group of people working together often come up with more good ideas than the same individuals working separately.
There is even brainstorming software available now. Increase Self-Confidence : Those with more self-confidence and self-esteem tend to be more venturesome, and hence more creative. If you suffer from low self-confidence or low self-esteem, you may wish to explore local courses or read some self-improvement books. Here are some suggestions for modifying your invention to make it work better:. One of the oldest and most well-known groups of inventors is the Minnesota Inventors Congress www.
We do advise some measure of caution with unpatented inventions. For example Los Angeles orthopedic surgeon and independent inventor Dr. As a result, some novice inventors think that their invention is worth millions and demand an unreasonably large royalty or lump-sum payment for their creation. This is seldom wise. Unfortunately it hardly ever happens so easily. To be successful, you usually have to record your invention properly, build and test a working model desirable but not always necessary , file a patent application, seek out suitable companies to produce and market the invention, and work like crazy to sell the invention to one of these companies.
Then came the computer, where each modern computer replaced nine Linotype machines, spawned another new industry and gave almost anyone the ability to create typeset documents. If you still doubt the value of inventors and inventions, consider this: without inventors and their inventions, we would still be living the way we lived 50, years ago! The day of the lone inventor is not over; many successful inventions and industries have been started by independent inventors.
Most inventions are created after recognizing a problem and finding a solution. If you make an invention, try to conceive of ramifications to enhance its value. Above all, persevere!
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After purchase, you can find a link to the URL in Appendix 8. Nolo's Inventors' Bundle. Patent Searching Made Easy. Patent Pending in 24 Hours. Toggle navigation Shopping-cart 0 Toggle search. Search Term. Shop Products By Subject. Select Your Format Choose an Option Buy Now. Protect and profit from your invention Learn how to prepare and file a patent application!
Patent attorneys David Pressman and Thomas Tuytschaevers take you through the entire process of applying for a patent, with scrupulously updated information and clear instructions to help you: understand patent law file a regular or provisional patent application market and license your invention Protect your million dollar idea with this bestselling guide! Blau provide the latest information, forms, and clear instructions to help you: conduct a patent search the right way evaluate your idea's commercial potential file a provisional patent application to get "patent pending" status prepare a patent application focus on your patent application's claims respond to patent examiners get your drawings done right protect your rights in foreign countries deal with infringers, and market and license your invention.
ISBN Number of Pages Product Details. About the Author. Table of Contents. Summary Appendixes 1. Abbreviations Used in Patent It Yourself 2. Fee Schedule 5. Quick-Reference Timing Chart 7. Sample Chapter. P Wide expanses of concrete or asphalt in a parking lot or driveway are ugly. Intermittent Windshield Wipers. P In drizzles, the slowest speed of windshield wipers was unnecessarily fast, and merely slowing the wipers was unsatisfactory, since a slow sweep was annoying.
Robert Kearns, II. Buried Plastic Cable-Locator Strip. Magnetic Safety Lock for Police Pistols. P Police pistols are often fired by unauthorized persons. P Gyroscopes are difficult to get running: they require the user to wind a string around a shaft surrounded by gimbals and then pull it steadily but forcefully to set the rotor in motion. Paul Brown, II. His first royalty check from Mattel was five times his annual salary! P Audio tapes played at low volume levels usually have an audible hiss.
Detail views of portions of elements, on a larger scale if necessary, may also be used. All views of the drawing must be grouped together and arranged on the sheet s without wasting space, preferably in an upright position, clearly separated from one another, and must not be included in the sheets containing the specifications, claims, or abstract. Views must not be connected by projection lines and must not contain center lines.
Waveforms of electrical signals may be connected by dashed lines to show the relative timing of the waveforms. When an exploded view is shown in a figure that is on the same sheet as another figure, the exploded view should be placed in brackets. Partial views drawn on separate sheets must always be capable of being linked edge to edge so that no partial view contains parts of another partial view.
A smaller scale view should be included showing the whole formed by the partial views and indicating the positions of the parts shown. When a portion of a view is enlarged for magnification purposes, the view and the enlarged view must each be labeled as separate views. However, the relationship between the different parts must be clear and unambiguous. The plane upon which a sectional view is taken should be indicated on the view from which the section is cut by a broken line.
The ends of the broken line should be designated by Arabic or Roman numerals corresponding to the view number of the sectional view, and should have arrows to indicate the direction of sight. Hatching must be used to indicate section portions of an object, and must be made by regularly spaced oblique parallel lines spaced sufficiently apart to enable the lines to be distinguished without difficulty.
Hatching should not impede the clear reading of the reference characters and lead lines. If it is not possible to place reference characters outside the hatched area, the hatching may be broken off wherever reference characters are inserted. Hatching must be at a substantial angle to the surrounding axes or principal lines, preferably 45 degrees. A cross section must be set out and drawn to show all of the materials as they are shown in the view from which the cross section was taken. The parts in cross section must show proper material s by hatching with regularly spaced parallel oblique strokes, the space between strokes being chosen on the basis of the total area to be hatched.
The various parts of a cross section of the same item should be hatched in the same manner and should accurately and graphically indicate the nature of the material s that is illustrated in cross section. The hatching of juxtaposed different elements must be angled in a different way. In the case of large areas, hatching may be confined to an edging drawn around the entire inside of the outline of the area to be hatched. Different types of hatching should have different conventional meanings as regards the nature of a material seen in cross section.
A moved position may be shown by a broken line superimposed upon a suitable view if this can be done without crowding; otherwise, a separate view must be used for this purpose. Modified forms of construction must be shown in separate views. All views on the same sheet should stand in the same direction and, if possible, stand so that they can be read with the sheet held in an upright position. If views wider than the width of the sheet are necessary for the clearest illustration of the invention, the sheet may be turned on its side so that the top of the sheet, with the appropriate top margin to be used as the heading space, is on the right-hand side.
Words must appear in a horizontal, left-to-right fashion when the page is either upright or turned so that the top becomes the right side, except for graphs utilizing standard scientific convention to denote the axis of abscissas of X and the axis of ordinates of Y. One of the views should be suitable for inclusion on the front page of the patent application publication and patent as the illustration of the invention.
Applicant may suggest a single view by figure number for inclusion on the front page of the patent application publication and patent. Every line, number, and letter must be durable, clean, black except for color drawings , sufficiently dense and dark, and uniformly thick and well defined. The weight of all lines and letters must be heavy enough to permit adequate reproduction.
This requirement applies to all lines however fine, to shading, and to lines representing cut surfaces in sectional views. Lines and strokes of different thicknesses may be used in the same drawing where different thicknesses have a different meaning. Shading is used to indicate the surface or shape of spherical, cylindrical, and conical elements of an object.
Flat parts may also be lightly shaded. Such shading is preferred in the case of parts shown in perspective, but not for cross sections. See paragraph h 3 of this section. Spaced lines for shading are preferred. These lines must be thin, as few in number as practicable, and they must contrast with the rest of the drawings.
As a substitute for shading, heavy lines on the shade side of objects can be used except where they superimpose on each other or obscure reference characters. Light should come from the upper left corner at an angle of 45 degrees. Surface delineations should preferably be shown by proper shading. Solid black shading areas are not permitted, except when used to represent bar graphs or color. The elements for which such symbols and labeled representations are used must be adequately identified in the specification.
Known devices should be illustrated by symbols that have a universally recognized conventional meaning and are generally accepted in the art. Other symbols which are not universally recognized may be used, subject to approval by the Office, if they are not likely to be confused with existing conventional symbols, and if they are readily identifiable.
They should contain as few words as possible. They must be oriented in the same direction as the view so as to avoid having to rotate the sheet. Reference characters should be arranged to follow the profile of the object depicted. They should not be placed in the drawing so as to interfere with its comprehension. Therefore, they should not cross or mingle with the lines. They should not be placed upon hatched or shaded surfaces.
When necessary, such as indicating a surface or cross section, a reference character may be underlined and a blank space may be left in the hatching or shading where the character occurs so that it appears distinct. Reference characters mentioned in the description must appear in the drawings. Such lines may be straight or curved and should be as short as possible. They must originate in the immediate proximity of the reference character and extend to the feature indicated.
Lead lines must not cross each other. Lead lines are required for each reference character except for those which indicate the surface or cross section on which they are placed. Such a reference character must be underlined to make it clear that a lead line has not been left out by mistake. Lead lines must be executed in the same way as lines in the drawing. See paragraph 1 of this section. The content of the notice must be limited to only those elements provided for by law.
Inclusion of a copyright or mask work notice will be permitted only if the authorization language set forth in 1. Partial views intended to form one complete view, on one or several sheets, must be identified by the same number followed by a capital letter. The view numbers must be larger than the numbers used for reference characters.
Models or exhibits are not required in most patent applications since the description of the invention in the specification and the drawings must be sufficiently full, clear, and complete and capable of being understood to disclose the invention without the aid of a model. A working model, or other physical exhibit, may be required by the Office if deemed necessary.
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This is not done very often. A working model may be requested in the case of applications for patent for alleged perpetual motion devices. When the invention relates to a composition of matter, the applicant may be required to furnish specimens of the composition, or of its ingredients or intermediates, for inspection or experiment. If the invention is a microbiological invention, a deposit of the microorganism involved is required.
Applications, other than provisional applications, filed in the United States Patent and Trademark Office and accepted as complete applications are assigned for examination to the respective examining technology centers having charge of the areas of technology related to the invention. In the examining TC, applications are taken up for examination by the examiner to whom they have been assigned in the order in which they have been filed or in accordance with examining procedures established by the Director.
Applications will not be advanced out of turn for examination or for further action except as provided by the rules, or upon order of the Director to expedite the business of the Office, or upon a showing that, in the opinion of the Director, will justify advancing them. The examination of the application consists of a study of the application for compliance with the legal requirements and a search through U. If two or more inventions are claimed in a single application, and are regarded by the Office to be of such a nature e.
The other invention may be made the subject of a separate application which, if filed while the first application is still pending, will be entitled to the benefit of the filing date of the first application. A requirement to restrict the application to one invention may be made before further action by the examiner. The reasons for any adverse action or any objection or requirement are stated in the Office action and such information or references are given as may be useful in aiding the applicant to judge the propriety of continuing the prosecution of his or her application.
If the claimed invention is not directed to patentable subject matter, the claims will be rejected. If the examiner finds that the claimed invention lacks novelty or differs only in an obvious manner from what is found in the prior art, the claims may also be rejected. It is not uncommon for some or all of the claims to be rejected on the first Office action by the examiner; relatively few applications are allowed as filed. The applicant must reply to every ground of objection and rejection in the prior Office action.
The mere allegation that the examiner has erred will not be received as a proper reason for such reconsideration. In amending an application in reply to a rejection, the applicant must clearly point out why he or she thinks the amended claims are patentable in view of the state of the art disclosed by the prior references cited or the objections made. He or she must also show how the claims as amended avoid such references or objections.
After reply by the applicant, the application will be reconsidered, and the applicant will be notified as to the status of the claims—that is, whether the claims are rejected, or objected to, or whether the claims are allowed, in the same manner as after the first examination. The second Office action usually will be made final.
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Interviews with examiners may be arranged, but an interview does not remove the necessity of replying to Office actions within the required time. On the second or later consideration, the rejection or other action may be made final. Petition may be taken to the Director in the case of objections or requirements not involved in the rejection of any claim.
Reply to a final rejection or action must include cancellation of, or appeal from the rejection of, each claim so rejected and, if any claim stands allowed, compliance with any requirement or objection as to form. In making such final rejection, the examiner repeats or states all grounds of rejection then considered applicable to the claims in the application. The applicant may amend the application as specified in the rules, or when and as specifically required by the examiner. Amendments in reply to a non-final Office action are governed by CFR 1.
Amendments filed after final action are governed by 37CFR 1. The specification, claims, and drawing must be amended and revised when required, to correct inaccuracies of description and definition or unnecessary words, and to provide substantial correspondence between the claims, the description, and the drawing. All amendments of the drawings or specification, and all additions thereto must not include new matter beyond the original disclosure. Matter not found in either, involving a departure from or an addition to the original disclosure, cannot be added to the application even if supported by a supplemental oath or declaration, and can be shown or claimed only in a separate application.
The manner of making amendments to an application is provided in 37 CFR 1. Amendments to the specification but not including the claims must be made by adding, deleting or replacing a paragraph, by replacing a section, or by a substitute specification, as provided in the rules. Replacement paragraphs are to include markings e. New paragraphs are to be provided without any underlining.
If a substitute specification is filed, it must be submitted with markings e. No change in the drawing may be made except by permission of the Office. Any replacement sheet of drawings must include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is amended.
Amendments to the claims are to be made by presenting all of the claims in a claim listing that replaces all prior versions of the claims in the application. In the claim listing, the status of every claim must be indicated after its claim number after using one of the seven parenthetical expressions set forth in 37 CFR 1.
All pending claims not being currently amended must be presented in the claim listing in clean version without any markings e. The original numbering of the claims must be preserved throughout the prosecution. When claims are canceled, the remaining claims must not be renumbered. When claims are added by amendment or substituted for canceled claims, they must be numbered by the applicant consecutively beginning with the number next following the highest numbered claim previously presented. When the application is ready for allowance, the examiner, if necessary, will renumber the claims consecutively in the order in which they appear or in such order as may have been requested by applicant.
Introduction to Understanding Patents
The reply of an applicant to an action by the Office must be made within a prescribed time limit. The maximum period for reply is set at six months by the statute 35 U. The usual period for reply to an Office action is three months. A shortened time for reply may be extended up to the maximum six-month period. An extension of time fee is normally required to be paid if the reply period is extended. The amount of the fee is dependent upon the length of the extension.
Extensions of time are generally not available after an application has been allowed. If no reply is received within the time period, the application is considered as abandoned and no longer pending. However, if it can be shown that the failure to prosecute was unavoidable or unintentional, the application may be revived upon request to and approval by the Director. The revival requires a petition to the Director, and a fee for the petition, which must be filed without delay. The proper reply must also accompany the petition if it has not yet been filed. If the examiner persists in the rejection of any of the claims in an application, or if the rejection has been made final, the applicant may appeal to the Patent Trial and Appeal Board PTAB in the United States Patent and Trademark Office.
An appeal fee is required and the applicant must file a brief to support his or her position. An oral hearing will be held if requested upon payment of the specified fee. As an alternative to appeal, in situations where an applicant desires consideration of different claims or further evidence, a request for continued examination RCE or a continuation application is often filed.
In a civil action, the applicant may present testimony in the court, and the court will make a decision. If timely payment of the fee s is not made, the application will be regarded as abandoned. See the current fee schedule at www. The Director may accept the fee s late, if the delay is shown to be unavoidable 35 U. When the required fees are paid, the patent issues as soon as possible after the date of payment, dependent upon the volume of printing on hand.
On the date of the grant, the patent file becomes open to the public for applications not opened earlier by publication of the application. In cases where the publication of an application or the granting of a patent would be detrimental to the national security, the Commissioner for Patents will order that the invention be kept secret and shall withhold the publication of the application or the grant of the patent for such period as the national interest requires.
The owner of an application that has been placed under a secrecy order has a right to appeal the order to the Secretary of Commerce. The terms of certain patents may be subject to extension or adjustment under 35 U. Such extension or adjustment results from certain specified types of delays which may occur while an application is pending before the Office. Utility and plant patents which issue from original applications filed between June 8, and May 28, may be eligible for patent term extension PTE as set forth in 37 CFR 1.
Such PTE may result from delays due to interference proceedings under 35 U. Utility and plant patents which issue from original applications filed on or after May 29, may be eligible for patent term adjustment PTA as set forth in 37 CFR 1. There are three main bases for PTA under 35 U. The first basis for PTA is the failure of the Office to take certain actions within specific time frames set forth in 35 U. The second basis for PTA is the failure of the Office to issue a patent within three years of the actual filing date of the application as set forth in 35 U.
The third basis for PTA is set forth in 35 U. Any PTA which has accrued in an application will be reduced by the time period during which an applicant failed to engage in reasonable efforts to conclude prosecution of the application pursuant to 35 U. A non-exclusive list of activities which constitute failure to engage in reasonable efforts to conclude prosecution is set forth in 37 CFR 1.
An initial PTA value is printed on the notice of allowance and fee s due, and a final PTA value is printed on the front of the patent. Any request for reconsideration of the PTA value printed on the notice of allowance and fee s due should be made in the form of an application for patent term adjustment, which must be filed prior to or at the same time as the payment of the issue fee. See 37 CFR 1. The patent contains a grant to the patentee, and a printed copy of the specification and drawing is annexed to the patent and forms a part of it. The patent does not grant the right to make, use, offer for sale or sell or import the invention but only grants the exclusive nature of the right.
Any person is ordinarily free to make, use, offer for sale or sell or import anything he or she pleases, and a grant from the government is not necessary. The patent only grants the right to exclude others from making, using, offering for sale or selling or importing the invention. A patentee, merely because he or she has received a patent for an invention, is not thereby authorized to make, use, offer for sale, or sell, or import the invention if doing so would violate any law.
An inventor of a new automobile who has obtained a patent thereon would not be entitled to use the patented automobile in violation of the laws of a state requiring a license, nor may a patentee sell an article, the sale of which may be forbidden by a law, merely because a patent has been obtained. Neither may a patentee make, use, offer for sale, or sell, or import his or her own invention if doing so would infringe the prior rights of others. A patentee may not violate the federal antitrust laws, such as by resale price agreements or entering into combination in restraints of trade, or the pure food and drug laws, by virtue of having a patent.
For example, a patent for an improvement of an original device already patented would be subject to the patent on the device. The term of the patent shall be generally 20 years from the date on which the application for the patent was filed in the United States or, if the application contains a specific reference to an earlier filed application under 35 U. A maintenance fee is due 3. The maintenance fee must be paid at the stipulated times to maintain the patent in force. After the patent has expired anyone may make, use, offer for sale, or sell or import the invention without permission of the patentee, provided that matter covered by other unexpired patents is not used.
The terms may be extended for certain pharmaceuticals and for certain circumstances as provided by law. All utility patents that issue from applications filed on or after December 12, are subject to the payment of maintenance fees which must be paid to maintain the patent in force. These fees are due at 3. See fee schedule for a list of maintenance fees. In submitting maintenance fees and any necessary surcharges, identification of the patents for which maintenance fees are being paid must include the patent number, and the application number of the U.
If the payment includes identification of only the patent number, the Office may apply payment to the patent identified by patent number in the payment or the Office may return the payment. See 37, Code of Federal Regulations, section 1. Failure to pay the current maintenance fee on time may result in expiration of the patent. A six-month grace period is provided when the maintenance fee may be paid with a surcharge. The grace period is the six-month period immediately following the due date. If, however, the maintenance fee is not paid on time, efforts are made to remind the responsible party that the maintenance fee may be paid during the grace period with a surcharge.
If the maintenance fee is not paid on time and the maintenance fee and surcharge are not paid during the grace period, the patent expires on the date the grace period ends. The Office may issue without charge a certificate correcting a clerical error it has made in the patent when the printed patent does not correspond to the record in the Office. These are mostly corrections of typographical errors made in printing. Some minor errors of a typographical nature made by the applicant may be corrected by a certificate of correction for which a fee is required.
The patentee may disclaim one or more claims of his or her patent by filing in the Office a disclaimer as provided by the statute 35 U. When the patent is defective in certain respects, the law provides that the patentee may apply for a reissue patent. Following an examination in which the proposed changes correcting any defects in the original patent are evaluated, a reissue patent would be granted to replace the original and is granted only for the balance of the unexpired term.
However, the nature of the changes that can be made by means of the reissue are rather limited; new matter cannot be added. In a different type of proceeding, any person may file a request for reexamination of a patent, along with the required fee, on the basis of prior art consisting of patents or printed publications.
At the conclusion of the reexamination proceedings, a certificate setting forth the results of the reexamination proceeding is issued. A patent is personal property and may be sold to others or mortgaged; it may be bequeathed by a will; and it may pass to the heirs of a deceased patentee.
The patent law provides for the transfer or sale of a patent, or of an application for patent, by an instrument in writing. Such an instrument is referred to as an assignment and may transfer the entire interest in the patent. The assignee, when the patent is assigned to him or her, becomes the owner of the patent and has the same rights that the original patentee had. The statute also provides for the assignment of a part interest, that is, a half interest, a fourth interest, etc. There may also be a grant that conveys the same character of interest as an assignment but only for a particularly specified part of the United States.
A mortgage of patent property passes ownership thereof to the mortgagee or lender until the mortgage has been satisfied and a retransfer from the mortgagee back to the mortgagor, the borrower, is made. A conditional assignment also passes ownership of the patent and is regarded as absolute until canceled by the parties or by the decree of a competent court. An assignment, grant, or conveyance of any patent or application for patent should be acknowledged before a notary public or officer authorized to administer oaths or perform notarial acts.
The certificate of such acknowledgment constitutes prima facie evidence of the execution of the assignment, grant, or conveyance. The Office records assignments, grants, and similar instruments sent to it for recording, and the recording serves as notice. If an assignment, grant, or conveyance of a patent or an interest in a patent or an application for patent is not recorded in the Office within three months from its date, it is void against a subsequent purchaser for a valuable consideration without notice, unless it is recorded prior to the subsequent purchase.
An instrument relating to a patent should identify the patent by number and date the name of the inventor and title of the invention as stated in the patent should also be given. An instrument relating to an application should identify the application by its application number and date of filing, the name of the inventor, and title of the invention as stated in the application should also be given. Sometimes an assignment of an application is executed at the same time that the application is prepared and before it has been filed in the Office.
Such assignment should adequately identify the application, as by its date of execution and name of the inventor and title of the invention, so that there can be no mistake as to the application intended. If an application has been assigned and the assignment has been recorded or filed for recordation, the patent will be issued to the assignee as owner, if the name of the assignee is provided when the issue fee is paid and the patent is requested to be issued to the assignee. If the assignment is of a part interest only, the patent will be issued to the inventor and assignee as joint owners.
Patents may be owned jointly by two or more persons as in the case of a patent granted to joint inventors, or in the case of the assignment of a part interest in a patent. It is accordingly dangerous to assign a part interest without a definite agreement between the parties as to the extent of their respective rights and their obligations to each other if the above result is to be avoided. The owner of a patent may grant licenses to others. Since the patentee has the right to exclude others from making, using, offering for sale, or selling or importing the invention, no one else may do any of these things without his or her permission.
A patent license agreement is in essence nothing more than a promise by the licensor not to sue the licensee. No particular form of license is required; a license is a contract and may include whatever provisions the parties agree upon, including the payment of royalties, etc. The drawing up of a license agreement as well as assignments is within the field of an attorney at law. Such an attorney should be familiar with patent matters as well.
A few states have prescribed certain formalities to be observed in connection with the sale of patent rights. Infringement of a patent consists of the unauthorized making, using, offering for sale, or selling any patented invention within the United States or U. Territories, or importing into the United States of any patented invention during the term of the patent.
If a patent is infringed, the patentee may sue for relief in the appropriate federal court. The patentee may ask the court for an injunction to prevent the continuation of the infringement and may also ask the court for an award of damages because of the infringement. In such an infringement suit, the defendant may raise the question of the validity of the patent, which is then decided by the court. The defendant may also aver that what is being done does not constitute infringement. Infringement is determined primarily by the language of the claims of the patent and, if what the defendant is making does not fall within the language of any of the claims of the patent, there is no literal infringement.
Suits for infringement of patents follow the rules of procedure of the federal courts. From the decision of the district court, there is an appeal to the Court of Appeals for the Federal Circuit. The Supreme Court may thereafter take a case by writ of certiorari. The government may use any patented invention without permission of the patentee, but the patentee is entitled to obtain compensation for the use by or for the government. The Office has no jurisdiction over questions relating to infringement of patents.
In examining applications for patent, no determination is made as to whether the invention sought to be patented infringes any prior patent. An improvement invention may be patentable, but it might infringe a prior unexpired patent for the invention improved upon, if there is one. 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.
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. The patent laws provide for the granting of design patents to any person who has invented any new and non-obvious ornamental design for an article of manufacture.
The design patent protects only the appearance of an article, but not its structural or functional features. The proceedings relating to granting of design patents are the same as those relating to other patents with a few differences. See current fee schedule for the filing fee for a design application. A design patent issued prior to May 13, has a term of 14 years from grant, and no fees are necessary to maintain a design patent in force. Effective May 13, , patent term has been revised to 15 years from the date of patent grant for design patents issuing from both national design applications under chapter 16 and international design applications designating the United States, and no fees are necessary to maintain a design patent in force.
The drawing of the design patent conforms to the same rules as other drawings, but no reference characters are allowed and the drawing should clearly depict the appearance, since the drawing defines the scope of patent protection.
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The specification of a design application is short and ordinarily follows a set form. Only one claim is permitted, following a set form that refers to the drawing s. The law also provides for the granting of a patent to anyone who has invented or discovered and asexually reproduced any distinct and new variety of plant, including cultivated sports, mutants, hybrids, and newly found seedlings, other than a tuber-propagated plant or a plant found in an uncultivated state. Asexually propagated plants are those that are reproduced by means other than from seeds, such as by the rooting of cuttings, by layering, budding, grafting, inarching, etc.
An application for a plant patent consists of the same parts as other applications. The term of a plant patent shall be 20 years from the date on which the application for the patent was filed in the United States or, if the application contains a specific reference to an earlier filed application under 35 U.
The specification should include a complete detailed description of the plant and the characteristics thereof that distinguish the same over related known varieties, and its antecedents, expressed in botanical terms in the general form followed in standard botanical text books or publications dealing with the varieties of the kind of plant involved evergreen tree, dahlia plant, rose plant, apple tree, etc. The specification should also include the origin or parentage of the plant variety sought to be patented and must particularly point out where and in what manner the variety of plant has been asexually reproduced.
The Latin name of the genus and species of the plant should be stated. Where color is a distinctive feature of the plant, the color should be positively identified in the specification by reference to a designated color as given by a recognized color dictionary. Where the plant variety originated as a newly found seedling, the specification must fully describe the conditions cultivation, environment, etc.
A plant patent is granted on the entire plant. It therefore follows that only one claim is necessary and only one is permitted. The oath or declaration required of the applicant in addition to the statements required for other applications must include the statement that the applicant has asexually reproduced the new plant variety.
If the plant is a newly found plant, the oath or declaration must also state that the plant was found in a cultivated area. Plant patent drawings are not mechanical drawings and should be artistically and competently executed. The drawing must disclose all the distinctive characteristics of the plant capable of visual representation. When color is a distinguishing characteristic of the new variety, the drawing must be in color. Two duplicate copies of color drawings must be submitted. All color drawings should include a one-inch margin at the top for Office markings when the patent is printed.
Specimens of the plant variety, its flower or fruit, should not be submitted unless specifically called for by the examiner. The filing fee on each plant application and the issue fee can be found in the fee schedule. For a qualifying small entity most fees are reduced by half. Plant patent applications may be published pursuant to Title 35, United States Code, Section b , but the publication fee is not reduced for small entities.
All inquiries relating to plant patents and pending plant patent applications should be directed to the United States Patent and Trademark Office and not to the Department of Agriculture. The Plant Variety Protection Act Public Law , approved December 24, , provides for a system of protection for sexually reproduced varieties, for which protection was not previously provided, under the administration of a Plant Variety Protection Office within the Department of Agriculture.
Requests for information regarding the protection of sexually reproduced varieties should be addressed to Commissioner, Plant Variety Protection Office, Agricultural Marketing Service, National Agricultural Library Bldg. Since the rights granted by a U. Almost every country has its own patent law, and a person desiring a patent in a particular country must make an application for patent in that country, in accordance with the requirements of that country.
The laws of many countries differ in various respects from the patent law of the United States. In most foreign countries, publication of the invention before the date of the application will bar the right to a patent. Most foreign countries require that the patented invention must be manufactured in that country after a certain period, usually three years.
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If there is no manufacture within this period, the patent may be void in some countries, although in most countries the patent may be subject to the grant of compulsory licenses to any person who may apply for a license. There is a treaty relating to patents adhered to by countries at the time of this printing , including the United States, and is known as the Paris Convention for the Protection of Industrial Property. It provides that each country guarantees to the citizens of the other countries the same rights in patent and trademark matters that it gives to its own citizens.
The treaty also provides for the right of priority in the case of patents, trademarks and industrial designs design patents. This right means that, on the basis of a regular first application filed in one of the member countries, the applicant may, within a certain period of time, apply for protection in all the other member countries. These later applications will then be regarded as if they had been filed on the same day as the first application.
Thus, these later applicants will have priority over applications for the same invention that may have been filed during the same period of time by other persons. Moreover, these later applications, being based on the first application, will not be invalidated by any acts accomplished in the interval, such as, for example, publication or exploitation of the invention, the sale of copies of the design, or use of the trademark. The period of time mentioned above, within which the subsequent applications may be filed in the other countries, is 12 months in the case of first applications for patent and six months in the case of industrial designs and trademarks.
Another treaty, known as the Patent Cooperation Treaty, was negotiated at a diplomatic conference in Washington, D. The treaty came into force on January 24, , and is presently as of adhered to by over countries including the United States. The treaty facilitates the filing of applications for patent on the same invention in member countries by providing, among other things, for centralized filing procedures and a standardized application format. The timely filing of an international application affords applicants an international filing date in each country which is designated in the international application and provides 1 a search of the invention and 2 a later time period within which the national applications for patent must be filed.
A number of patent attorneys specialize in obtaining patents in foreign countries. Under U. Such a license is required if the foreign application is to be filed before an application is filed in the United States or before the expiration of six months from the filing of an application in the United States unless a filing receipt with a license grant issued earlier. The filing of an application for a U. After six months from the U. If the invention has been ordered to be kept secret, the consent to the filing abroad must be obtained from the Director of the USPTO during the period the order of secrecy is in effect.
The patent laws of the United States make no discrimination with respect to the citizenship of the inventor. Any inventor, regardless of his or her citizenship, may apply for a patent on the same basis as a U. There are, however, a number of particular points of special interest to applicants located in foreign countries. The application for patent in the United States must be made by the inventor and the inventor must sign the oath or declaration with certain exceptions , differing from the law in many countries where the signature of the inventor and an oath of inventorship are not necessary.
If the inventor is dead, the application may be made by his or her executor or administrator, or equivalent, and in the case of intellectual disability it may be made by his or her legal representative guardian. Six months are allowed in the case of designs.