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What is a Patent?
inventions are the grant of a property right to the inventor, issued by
the Patent and Trademark Office of a nation. In the United States, the
term of a new patent is 20 years from the date on which the application
for the patent was filed or in special cases, from the date an earlier
related application was filed, subject to the payment of maintenance
The right conferred by the patent grant is generally a
right to exclude others from making, using, offering for sale or
inventions. What is
granted is not the right to make, sell or import but the right to exclude others from making, selling or importing the inventions.
What Can Be
The patent law specifies the general field of subject
matter that can be patented and the conditions under which a patent for an invention may be obtained. Any person who
invents or discovers any new and useful process, machine, manufacture or composition of matter or any new and useful improvement thereof
may obtain a patent subject to the conditions and requirements
of the law.
In order for an
invention to be patentable it must be new as defined in the patent law,
which provides that an invention cannot be patented if: (a) the
invention was known or used by others in this country, patented or
described in a printed publication in this or a foreign country before
the invention thereof by the applicant for patent (b) the invention was
patented or described in a printed publication in this or a foreign
country, in public use or on sale in this country more than one year
prior to the application for patent.
If the invention had been described in a printed publication anywhere in
the world, if it has been in public use or on sale in this country
before the date that the applicant made his/her invention, a patent
cannot be obtained. If the invention had been described in a printed
publication anywhere, has been in public use or on sale in this
country more than one year before the date on which an application for
patent is filed in this country, a patent cannot be obtained.
connection it is immaterial when the inventions had been made, whether the
printed publication or public use was by the inventor himself/herself or
by someone else. If the inventor describes the invention in a printed
publication, uses the inventions publicly or places it on
sale, he/she must apply for a patent before one year has gone by.
Otherwise any right to a patent for an invention will be
lost. The inventor must file on the date of public use or disclosure in order to preserve patent rights in many foreign countries.
The preparation of an application for patent for an
invention is an undertaking requiring
the knowledge of patent law and rules as well as knowledge of the
scientific or technical matters involved in the particular inventions. While a patent for
an invention may
be obtained in many cases by persons not skilled in patent law and rules, there
would be no assurance that the patents would adequately protect the particular inventions.
Who May Apply
For A Patent
According to the law only the inventor may
apply for a patent for his or her invention,
with certain exceptions.
If the inventor is dead the application may be made by legal
representatives, the administrator or executor of the estate. If
the inventor is insane the application for patent for an invention may be made by a
guardian. If an inventor refuses to apply for a patent for his or her
inventions or cannot be
found, a joint inventor or if there is no joint inventor available, a
person having a proprietary interest in the inventions may apply on behalf
of the non-signing inventor. If two or more persons make an
invention jointly, they apply for a patent as
joint inventors. A person who makes only a financial contribution for the
inventions is not a joint inventor and cannot be joined in
the application as an inventor.
Application for a Patent
Since June 8,
1995, the USPTO has offered inventors the option of filing a provisional
application for patent for an invention which was designed to provide a lower cost first
patent filing in the United States and to give U.S. applicants parity
with foreign applicants. Claims and oath or declaration are not required
for a provisional application. Provisional application provides the means
to establish an early effective filing date in a patent application and
permits the term “Patent Pending” to be applied in connection with the
inventions. The filing date of a provisional application is the
date on which a written description of the invention, drawings if
necessary, and the name of the inventor(s) are received in the USPTO.
A patent for an invention is personal
property and may be sold to others or mortgaged. It may be bequeathed by a will, and it may pass to the
heirs of a deceased patentee. The patent law provides for the transfer or
sale of patents for inventions or of an application for patent, by an instrument in
writing. Such an instrument is referred to as an assignment and may
transfer the entire interest in the patent for an invention. The assignee, when the patent
is assigned to him or her,
becomes the owner of the patent for an invention and has
the same rights that the original patentee had.
A patent may be owned jointly by two or more persons as in
the case of a patent granted to joint inventors or in the case of the
assignment of a part interest in patents for inventions. Any joint owner of a
patent may make, sell and import the invention for his or her own profit
provided they do not infringe another’s rights and may sell the interest or any part of it or grant
licenses to others unless the
joint owners have made a contract governing their relation to each other.
The owner of a patent for an invention may grant licenses
to others for the inventions. Since the patentee has the
right to exclude others from making, selling
or importing the invention, no one else may do any of these
things without his/her permission.
Infringement of a patent consists of the
unauthorized making, using, offering for sale or selling any patented
invention within the United States or U.S. Territories or
importing into the United States of any patented inventions
during the term of the patents. If a patent for an
invention is infringed, the patentee may sue for relief in
the appropriate federal court.
The laws of many countries differ in various
respects from the patent law of the United States. In most countries,
publication of the invention before the date of the
application will bar the right to a patent. In most countries maintenance
fees are required. Most countries require that the patented inventions must be manufactured in that country after a certain period,
usually three years.
There is a treaty relating to patents which
is adhered to by 140 countries including the United States and is known
as the Paris Convention for the Protection of Industrial Property. It
provides that each country guarantees to the citizens of the other
countries the same rights in patent for an invention and trademark
matters that it gives to its own citizens. The treaty also provides for
the right of priority in the case of patents, trademarks and industrial
This right means that on the basis of a regular first patent
application for an invention filed in one of the member
countries, the applicant may, within a certain period of time apply for
protection in all the other member countries. The Patent Cooperation Treaty facilitates the filing of
applications for patents on the same inventions in member countries by
providing, among other things, for centralized filing procedures and a
standardized application format.
The timely filing of an
international patent application for an invention affords applicants a filing date
in each country which is designated in the application and
provides (1) a search of the invention and (2) a later time period within
which the national applications for patent must be filed.
Under U.S. law it is necessary, in the case of inventions made in
the United States, to obtain a license from the Director of the USPTO
before applying for a patent in a foreign country. The filing of a
for an invention constitutes the request for a license and the granting or denial
of such request is indicated in the filing receipt mailed to each
applicant. After six months from the U.S. filing, a license is not
required unless the invention had been ordered to be kept secret. If the
inventions had been ordered to be kept secret, the consent to the filing
abroad must be obtained from the Director of the USPTO during the period
the order of secrecy is in effect.
Applicants for U.S. Patents
The patent laws
of the United States make no discrimination with respect to the
citizenship of the inventor. Any inventor, regardless of his/her
citizenship, may apply for a patent for an invention on the same basis as a U.S. citizen.
There are, however, a number of particular points of special interest to
applicants located in foreign countries.
No U.S. patent can be
obtained if the inventions had been patented abroad before applying in
the United States by the inventor or his/her legal representatives or if
a foreign application was filed more than 12 months before filing in the
United States. Six months are allowed in the case of a design patent.
A patent application for an invention filed in the United States by any person
who has previously regularly filed an application for a patent for the
same invention in a foreign country which affords similar privileges to
citizens of the United States shall have the same force and effect for
the purpose of overcoming intervening acts of others as if filed in the