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Basic Information about U.S. Patents
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What is a Patent?
A patent is a certificate issued by the government to an inventor which gives the inventor the right to exclude others from making, using, or selling his/her invention for 17 years. After 17 years, anyone can make, use, or sell the invention. A patent application must be filed within one year from the time the invention is made public.
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What is Patentable?
An idea by itself is not patentable. The idea must be "reduced to practice". The statutory definition of what is patentable is: any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof. The term "useful" is generally taken to mean that the invention actually works to accomplish some task; it is not a value judgement on the worth of an invention. Recent decisions have determined that computer software and synthetic life forms can be patented, but they still must be new and useful.
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The Application
In the United States, an application for a patent must contain a description of the invention which is in sufficient detail to enable someone familiar with the technology to make and use the invention. For example, an application for a patent for an improved electric razor must contain enough information to enable someone familiar with electric razor technology to make and use the invention, that is the improved electric razor which the inventor is trying to patent.
__ The patent application must also contain at least one "claim". A "claim" is a legal description of the invention which lets the public know what the inventor has actually invented, what is his/her monopoly.
__ Lastly, the application must contain a declaration signed and dated by the inventor and the filing fee. The declaration is very important in the U.S. Patent and Trademark Office (PTO) and must be signed by the inventor only after he/she has read and approved the application. The declaration may be filed separately after the application is filed, but a late fee is charged.
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Owner vs. Inventor
In the United States, an application for a patent must be filed "in the name of the inventor". In other countries, the application may be filed by an "applicant". What does this mean?
__ A patent is a valuable piece of property like a house. The inventor is like the builder, but he might not own the house. I can hire a builder to build a house for me, but I own it from the start, even before the first nail is hammered. Big companies have research departments (inventors) on their payroll. They pay these people salaries to invent things. These inventions are owned by the big company, even before a patent application is filed. In the U.S. we call the owner of a patent who is not the inventor an "assignee". We call them that because the inventor must "assign", i.e. sell or give title to, the invention. Why?, because in the U.S., the invention is owned by the inventor until it is assigned. In the US, the "applicant" is always the inventor, but the inventor can assign his rights to another.
__ An assignment can be made any time before the patent expires (17 years after it issues).
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Examination
Once the application is filed, the inventor can use the phrase "Patent Pending" in reference to the invention. Several months after the application is filed, it is assigned to a patent examiner. There are hundreds of patent examiners working in the PTO and they are arranged in groups according to technology. For example, there is one group of examiners for inventions dealing with rockets and another for inventions dealing with baby carriages.
__ The examiner determines whether the application meets the formal requirements of the PTO, whether the invention claimed is useful, and conducts a search to determine whether the invention claimed is new.
__ The examiner then issues the first "Official Action" from the PTO. I say first because the applicant is entitled to 2 Official Actions. The Official Action is written by the examiner who has been assigned to the application. The examiner is an engineer, usually not a lawyer, sometimes experienced and knowledgeable, often young and inexperienced. He or she is supposed to read the application carefully and advise the applicant, by way of the "Official Action", whether the patent will be granted or whether the application needs revision.
__ The reply to an Official Action is called an Amendment. After the Amendment is filed, some time goes by and then the examiner issues a second Official Action.
__ If all goes well, the second Official Action is a Notice of Allowance. This means that the examiner believes the application can issue as a Patent. The actual Patent is the application as amended and printed nicely with a red ribbon and a gold seal.
__ In response to the Notice of Allowance, the applicant must pay an issue fee on the date due (3 months after the date of the allowance).
__ After the issue fee is paid (several months after), a receipt is mailed from the PTO which tells what day the patent will issue and what number it will get.
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Maintenance
A patent lasts for 17 years if it is maintained. To maintain a patent maintenance fees must be paid 3.5, 7.5, and 11.5 years after it issues. If the fees aren't paid, the patent lapses.



This file was originally uploaded to AOL by Thomas A. Gallagher, ESQ., ©1990. Please visit his web site for completely updated information on this and other legal issues.

©1990
THOMAS A. GALLAGHER, ESQ.
Registered Patent Attorney
30-605 NEWPORT PARKWAY JERSEY CITY NJ 07310
TELEPHONE: 201-653-4269 FAX: 201-653-4364
TELEX: 6504023049 MCI MAIL: 402-3049

The above is not intended to be legal advice, but is merely informative of the copyright laws. Anyone interested in obtaining information about copyright protection should seek the advice of a qualified attorney.

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