BASIC FACTS ABOUT PATENTS
What's a patent all about?
The basic concept behind patents was laid out by the English parliament in
1623 as part of a law prohibiting monopolies. One of the very few exceptions
they allowed was a monopoly grant, good for about 20 years, to anyone who took
the entrepreneurial risk of bringing a new product to the market, and who
publicly disclosed the source of that product so that competition could start
as soon as the patent expired. At this basic level, not much has changed in
over 350 years. A
An introduction to US patents is available on-line from both the US Patent and Trademark Office (http://www.uspto.gov) and from the government's consumer information operation in Pueblo CO (http://www.pueblo.gsa.gov – enter ‘patents’ in the search window). Alternately, a hardcopy of "General Information Concerning Patents" can be purchased from the Superintendent of Documents for a few dollars.
Do I need to get a patent in order to sell my product?
No. A patent is meant to keep somebody else from making, using or selling your claimed invention without your permission. In fact, if you get a patent on an improvement for a product protected by someone else's patent, you may need to get a license from the earlier inventor before going into business.
What is patentable?
Utility patents are granted for new and useful processes, machines, articles of manufacture or compositions of matter. In the US one can file a provisional application for a utility patent, or apply for a design or plant patent, but when someone says "patent" he or she is almost always referring to a utility patent (A notable exception to this rule is furnished by several invention marketing scams who systematically mislead people into thinking they have obtained effective utility protection from a nearly worthless design patent or provisional filing).
Just how "new" does the invention have to be?
There are two major parts to the definition of "patentably new".
The first of these requires the invention to be new in a narrow, but
unambiguous sense. The invention satisfies this first test as long as there is
no earlier patent, product, or published reference that has all of the
invention's claimed features. The second part of the definition requires the
invention to be more than just a small straightforward improvement. In the US
this limitation is stated by requiring that the subject matter of the invention,
taken as a whole and considered at the time at which the invention was made, is
not obvious to a person having ordinary technical skill in the art. In the
European Patent Office and in international applications under the Patent
Cooperation Treaty (PCT) the same sort of prohibition on
patenting small, obvious improvements is handled by requiring "an
inventive step". Either one of these approaches puts a healthy dose of
ambiguity into the examination process. There is always room to argue about
what would have been obvious when the invention was made, or how big a change
has to be before it becomes inventive.
How much protection does a patent really give me?
The degree to which the invention is new and different sets a basic limit on the breadth of available protection. A patent novelty search can often help the inventor decide if seeking patent protection is worthwhile.
How the patent application is written also sets important limits on protection. A poorly written patent can deprive an invention of all protection. The prospective patentee should expect his or her agent or attorney to ask about alternate ways of carrying out or using the invention so that the application can justify the broadest allowable claims.
What is protected by a patent is what is described in its claims. The claims
should be written to withstand a hostile reading by someone who would like to
design around, or otherwise avoid the patent. From a patent owner’s
perspective, no other reader matters.
What does "patent pending" mean?
Only that a patent application has been filed. In the US, patents are not actually enforceable until the application has been examined and allowed and a patent actually issues. Nevertheless, a "pat. pending" marking can discourage competition by putting the would-be competitors on notice that they may lose their start-up costs when the patent issues and they have to close up shop.
What does it cost? How long does it take?
A 1996 survey by the American Intellectual Property Law Association
indicated that the median cost for filing a minimally complex utility
application was $3725. Computer hardware/software patents had a median cost
about twice that high. Adding in the cost of one round of arguments with the
examiner (90+% of cases require this) and the fees paid to the Patent Office
leads one to a total cost of about $6000 to patent a simple mechanical
invention. My fees are usually no more than 50% of these
averages -- and I will quote firm fixed prices for most services (Office rental
in cyberspace is really cheap, and that keeps the overhead down). A more
detailed discussion of the patenting process in the
David
A. Kiewit
Registered Patent Agent
St. Petersburg
+1 (727) 866-0669 (voice/fax)
questions to:
dak@patent-faq.com
Copyright 2002-2007 by David A. Kiewit
All rights reserved
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