Read these 6 Obtaining a Patent Tips tips to make your life smarter, better, faster and wiser. Each tip is approved by our Editors and created by expert writers so great we call them Gurus. LifeTips is the place to go when you need to know about Invention tips and hundreds of other topics.
You've probably seen the term -patent pending- many times on store products and other items. Those wishing to patent inventions can do so through one of two types of applications: provisional or non-provisional. In 1995, it became legal to file a provisional patent, which is a lower-cost type of application in the US. It also helps give US patent filings more parity with foreign applicants. No claim or oath is required for a provisional patent; it acts as a means to file an early effective date and allows you to use the term, patent pending. Certain types of patent filings do not have this option so check with the US Patent and Trademark Office regarding your own invention claim.
After filing a provisional application, you have a certain grace period in which to file a non-provisional one. Keep in mind, provisional patent filings are NOT examined on merits. A 'patent pending' claim on a product might deter competitors but, if it's later discovered that your invention really isn't new, it's meaningless. In this case, you might even be infringing on someone else's patent. So, do a thorough patent search to make sure your invention isn't already patented by someone else before filing any type of patent application.
Before you begin the process of obtaining an invention patent, you must be careful not to disclose your new invention. If evidence is found that you did so within a certain time frame before filing for an invention patent, your claim could be denied. In fact, to establish what is called priority of invention, you cannot use your invention in public or sell it or publish anything about it more than one year before you file a patent for it. Foreign patent laws are likely to be even more strict on this disclosure idea. If you want to obtain evidence of the date of conception of your invention in the meantime, the US Patent and Trademark Office offers what is called a Disclosure Document Program.
The office will accept and preserve for two years documented evidence of your discovery. If you do not file for a patent within two years, this document will be destroyed. If you file a subsequent application, you should always refer to this letter in your application. By law Disclosure Documents have to be kept in confidence by the US patent office. But, the limitation of such documents are stated quite clearly by the office: "The Disclosure Document is not a patent application. The date of its receipt in the USPTO will not become the effective filing date of any patent application subsequently filed." You might have heard of creating evidence of a new idea by mailing a registered letter to yourself. Some people refer to this as the poor man's patent.
The Disclosure Document program is one way to obtain more credible evidence of your invention. There are other ways, too so investigate patent law thoroughly or contact a patent attorney to determine your best move at this stage of patenting.
One of the best types of patent services you can obtain is the advice of a lawyer or patent agent. But, you might ask, why should I pay someone to file an application? Isn't it simple enough that I can do it? Well, yes and no. Finding details about filing a US patent isn't all that hard. And, if you have basic writing and presentation skills, you can follow the those directions. But, the real reason you should hire a patent attorney or other registered patent agent is because describing your invention in a language that completely protects it from competitors is a learned skill. Let's say your invention is a house. Through your patent claims, you have to build a fence around that house without leaving even the smallest of places someone can find a way in. If you leave even one board loose, another inventor can sneak in and find a way to sell a product that isn't covered by your patent. And, he or she won't be infringing on your claim in that case.
A good patent attorney should be initially skeptical about your claim so don't consider that bad practice. That skepticism will allow him or her to write a more effective claim later on. While the US Patent and Trademark Office will not refer an attorney to you, the office does maintain a database of registered patent attorneys and agents. These are people who are able to represent inventors through the patent process. Some people do market themselves as experts in patent law without being registered with the US patent office and so they cannot represent your specific application, although they can give you general advice.
Other ways you can obtain help in finding an attorney or patent agent include: the phone book or yellow pages (check fore a listing under patent attorneys), through an association of patent attorneys near you, online or through a personal reference. It may even be worth your while, if you write your own patent claims, to hire a patent attorney to look at your application before you submit it. Then, your overall costs may be less and he or she can point out areas that need more attention. If you hire a patent attorney or agent registered with the United States Patent and Trademark Office he or she will correspond directly with the office to help you patent an idea. Of course, you have the right at any time to request these services be terminated by revoking the power of attorney you granted for this service. If you feel an agent registered with the USPTO has not done an effective job, you should consider filing a complaint with the office.
Obtaining a patent is often a complicated matter. Some actions taken by an inventor--such as disclosing his or her invention--can lead to an inadvertent forfeiture of patent protection. Publishing detailed information about the invention too soon can do the same. Similar rules apply to foreign patents. Even disclosing an invention in the US can lead to a loss of the right to file for a foreign patent. However, some treaty arrangements between the US and foreign countries can help inventors patent an idea elsewhere. In some cases, if an inventor files for a patent in the US on a certain date and for a foreign patent within one year, the original US date of filing will apply, even in the foreign country.
Also, if--after filing a US patent--an inventor may want to or be required to publish information about the invention. If that information discloses benefits of the invention without naming details of the invention, it could protect that inventor from losing foreign patent rights. However, never consider this type of publication without advanced counsel from a qualified patent attorney. The laws governing patent rights--and their foreign counterparts--are vast so it is best to leave this area of the law to the experts or it could cost you a significant loss of future income, especially considering the nature of the world economy.
Let's say you spend a long time perfecting your invention. You are careful to keep it a secret discloing it to no one. You keep detailed records of its development as evidence of when you discovered the invention. Once all the bugs are worked out, then you begin to learn about obtaining a patent and decide to file an application with the US Patent and Trademark Office. Then, while conducting a literature review and patent search, you are shocked to learn that someone else has a patent pending for the same invention.
One option is to file your patent, begin to produce your invention and then use your records as evidence if this other party sues you for patent infringement. Another approach would be to file your patent and then request that an interference be declared between your application and the application of the other party.
An interference is a type of proceeding held by the patent office to determine who was the first inventor when two people try to patent the same new invention. Don't try to defend yourself in these proceedings; most experts agree you should hire a patent attorney to give your invention the best chance of winning. Of course, this type of filing is only valid if you think you have come up with the idea before your competitor did. And, the sooner you act in this situation, the better off you'll be.
Before you patent an idea, you should understand the difference between patents and trademarks. The administration of both patents and trademarks is handled by the US Patent and Trademark Office in Washington, D.C. But they have distinct functions. A patent is given to an inventor of a unique product or technology so that person is guaranteed no one else can profit from the use or sale of the new idea in question. Have you ever seen the letter R in a circle after a name of a product? That means registered trademark. Examples are Velcro, Bubble Wrap and Post-It Notes.
A trademark is a word or phrase that allows a product to be distinguished from others like it in the minds of consumers. In other words, a trademark is a brand name. A service mark is a type of trademark that can be represented by a phrase or symbol. As such, trademarks protect a marketing idea rather than a unique invention. For example, the type of tracing device that has become a widely used toy is patented but the name, Etch A Sketch is trademarked. Additionally, as in the case of Kleenex, others manufacturers can make tissues but they can't call them Kleenex. The brand name, Kleenex is relying on consumer devotion to sell their product. While patents are good for a certain time period, trademarks are good for as long as the product is in use. So, if you want to make sure the public does not confuse your product's image with that of another, you might want to research getting a trademark. You can find out more about trademarks at uspto.gov, the website of the US Patent and Trademark Office.
|Sheri Ann Richerson|