FACTS ABOUT PATENTS
1. What is a patent?
A patent for an invention is the granting of ownership rights of the claimed invention to the owner of the patent in a particular country. This means that no one other than the patent owner has the right to make, use or sell the claimed invention without permission (from the owner).
2. What can be patented?
Any new and useful process, machine, manufacture, or composition of matter (such as chemical compounds); or any new and useful improvement of any of these, can be patented. The word “process” is defined by law as a procedure, act or method, and primarily refers to industrial or technical processes. In some countries software is patentable (such as in the US); in other countries restrictions are placed on patentability of software while in other countries software is not patentable. Business methods are patentable in the US. In some countries, such as the US, lower (non-human) animals are patentable while in other countries they are not.
3. What qualifies as truly new, or "novel"?
In order for an invention to be patentable, it must be "novel" as defined in the patent law: not known or used by others, and not patented by anyone else before its invention by the applicant.
If the invention has been described publicly anywhere in the world, it has become "known" to the public, and a patent cannot be obtained.
If the subject matter to be patented involves one or more differences compared to something already known, a patent may still be issued, as long as the differences or innovations are substantial from a technological standpoint and not from an "obvious" standpoint. An example of "obvious difference" would be the substitution of one color for another, or changes in size, which are ordinarily not patentable. It should be noted that there is a grace period in the US of one year after publication. Also public description may include verbal presentations such as a conference or seminar, or being sold or used (in some countries “offer for sale” also is a form of publication).
4. How long does a patent last?
Usually for 20 years from the date of filing; however in some cases patent term extensions are available (particularly for pharmaceuticals or medical devices in many countries).
5. What is a "Provisional Application"?
The United States Patent and Trademark Office (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. Applicants are entitled to claim the benefit of a provisional application in a corresponding non-provisional application filed not later than 12 months after the provisional application filing date.The corresponding non-provisional application would benefit in three ways: (1) patentability would be evaluated as though filed on the earlier provisional application filing date, (2) the resulting publication or patent would be treated as of the earlier provisional application filing date, and (3) the twenty-year patent term would be measured from the later non-provisional application filing date. Inventors may file U.S. provisional applications regardless of citizenship.
STEPS IN THE PATENT PROCESS
(from the American Bar Association, for general information only)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 Patent 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, 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 or other prior art that are not quite the same as your invention, but when combined they 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 file a continuation or RCE application in order to pursue it further. However, due to recent changes in the U.S. 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 set forth.
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 file a continuation or RCE patent application or concede the Examiner's rejection(s).
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 if the patent has lapsed.
Patent Expires at 20 years from filing (14 years from issue for designs)
Anyone can use the invention once the patent has expired.