Patent Process
From Vinodksingh
What is a patent? A patent is a right, granted by the government, that excludes others from making, using, or selling the invention covered in the claims of the patent.
What can be patented? Only certain things can be patented. These are: new and useful processes, machines, manufactures, or compositions of matter, or any new and useful improvements thereof. Things that cannot be patented include: methods of doing business, processes composed only of mental steps, and mathematical formulae. Most new devices and machines can be patented. Software is patentable, so long as it falls within the proper categories set forth above.
Why should I seek a patent? You should seek a patent if you want to exclude others from making, using, or selling your invention. If granted, the patent forces others to come to you if they want to use your invention. No one else can make your invention without infringing your patent. If you have a patent, you can force others to license it from you. This is one way to get money for your invention. Many companies do not talk with small inventors unless they have a patent or patent application for the invention.
When should I seek a patent? It depends upon your particular circumstances. For some, a patent should be sought immediately so that there is no risk of losing the rights in the invention in the U.S. and abroad. For others, a patent should be sought when it becomes clear that the invention is one that will earn enough so that it is worth the expense of seeking patent protection.
Who should get a patent? Those who want to protect their inventions. Only by seeking patent protection can you place the words "patent pending" or the like on your invention. Only by having a patent can you protect your invention from infringement by others.
Who can get a patent? Only inventors can get patents. Inventors are those who conceive of inventions. Those who do the bidding of inventors are considered workmen and not inventors, although in reducing the invention to practice, sometimes workmen make contributions of an inventive nature to an already inventive item. Inventors may be under a contractual obligation to license or assign their patents to another. However, at the outset, it is only the inventor who can seek to obtain a patent for the invention.
Where do I apply for a patent? You submit your patent application to the United States Patent and Trademark Office in Arlington, Virginia outside of Washington, D.C. 20231. You can contact the Patent Office by telephone at (703) 308-HELP (308-4357).
How do I get a patent? You get a patent after you file an application for one and the application is approved or "allowed" by the Patent Office.
Events in the Patent Application Process
Application
- Specification
- Claims
- Drawings
- Set forth the invention clearly and with particularity so that the Patent Office can tell what the invention is.
Filing
After drafting the patent application, file it with the U.S. Patent and Trademark Office.
Examination
The Patent Office receives the application and assigns it to a group of Examiners who constantly examine patent applications dealing with the same sort of invention. Upon receiving the patent application, the examining group queues it up behind the other pending patent applications. Once the application is taken up by an Examiner, the claims of the application will be searched to see if they would protect subject matter that has already been invented. This is a patent search performed by the Examiner, who then reviews the results of the search. After reviewing the patents, the Examiner communicates in writing to the inventor whether or not the application can issue as a patent. If it cannot, the Examiner explains why not in an Office Action.
Office Action
Very few patent applications are allowed upon submission. Drawings commonly have errors, but are used for examination purposes. Sometimes, the Examiner finds the invention has been invented before and no patent will issue. Sometimes, the Examiner will find patents that are not quite the same as your invention, but when combined, yield the same invention that you have.
Reply
If the Examiner has not allowed the claims, you can respond in writing by amending the claims and/or indicating how the Examiner has misinterpreted or incorrectly applied the patents found or the laws applicable to patent applications.
Further Examination
The Examiner further examines the application in light of the amendments and/or remarks set forth in the Reply. If the Examiner is persuaded that the application should issue as a patent, a Notice of Allowance is sent to the inventor. If not, the Examiner issues a Final Office Action setting forth why a patent cannot issue.
Final Office Action
The Examiner has determined that the claims are not patentable. You may appeal or re-file the application in order to pursue it further. However, due to recent changes in the law, if a patent issues in the future, the period during which it can be enforced is calculated from the date of filing of the first application and not the date of issue of the patent. The term of a patent is now 20 years from the date of initial filing.
Reply After Final The inventor can make a Reply after the Examiner has made a Final Rejection. Often, these Replies amend the application to conform with any requirements the application has made.
Advisory Action
Sometimes, when a Reply After Final has been made, the Examiner will issue an Advisory Action indicating the status of the application. The Final Rejection is still in force, but the inventor may have gained some ground in the application process.
Appeal, Continuing Application or Abandonment
While an appeal can be made appealing the Final Rejection, inventors often either re-file the patent application or concede the Examiner's rejection(s) and let the application go abandoned.
Notice of Allowance and Issue Fee Due
The Examiner has determined that the application should issue as a patent. Formal drawings are usually submitted at this point. The issue fee must be paid for the patent to issue.
Pay Issue Fee, Submit Formal Drawings
Upon receipt of these from the inventor, the Patent Office will proceed with issuance of the patent.
Patent Issues
Congratulations! Your application has issued as a patent and (upon payment of maintenance fees) is enforceable for up to 20 years from the date of initial filing.
Maintenance Fees at 3 1/2, 7 1/2, and 11 1/2 years
To maintain the patent as enforceable, maintenance fees are due at these times to prevent the patent from lapsing and becoming unenforceable. You generally cannot sue for infringement is the patent has lapsed.
Patent Expires at 20 years from filing (14 years from issue for designs)
By affording protection for inventors during the patent-enforcement period, society as a whole benefits from the disclosure of new and useful inventions. Having had exclusive rights to the invention for the period of the patent, anyone can practice the invention once it has expired.
More Patent Information
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