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More Information on other types of Patents: Design Patents and Utility Patents

PATENTS

First off, lets understand that one does NOT need a patent in order to produce and sell a product. You are free to make and sell a product anywhere in the world, so long as you are not infringing someone else's patent. A patent allows you to stop other people from copying your device.

Having said that, let's look at patents and patent applications.  A "patent" is a document issued by a national government granting the patentee the exclusive right to manufacture, use or sell the invention described in the patent for a prescribed interval of time.

After that interval of time has expired, the invention is "in the public domain", which means that it is free for anyone to use without payment to the patentee. We are talking here about "utility" patents, which cover the structure and function of an invention. A "patent application" is a document which a person files with a national government requesting that a patent be granted covering a particular invention. A "provisional" patent is a temporary device which allows the patentee to mark the invention "patent pending" for one year. Click HERE for more information on the pros and cons of filing a PROVISIONAL PATENT.

Protection:

In a Utility patent, the claims are the legal definition of the protection provided by a patent. Also, a patent is a public document. Therefore, as soon as the patent issues, anyone can get a copy of it and use it as a blueprint to design around it - and that's fair game! Furthermore, if they decide to ignore your patent and to go ahead and copy your device, what you've got is a license to sue! Unfortunately, patent litigation is h-o-r-r-e-n-d-o-u-s-l-y expensive. It will cost hundreds of thousands or millions of dollars to fight a patent lawsuit. I have been involved in three litigation cases and, in each of them, we have had over one million dollars invested before we ever got to court!

Moreover, since there is that much money involved, there will be appeal on appeal on appeal. So your hundreds of thousands or millions of dollars will be tied up for years on end. For most individual inventors, this is not the real world!

In my opinion, the protection afforded by a patent application is greater than that of an actual patent, despite the fact that you cannot sue for infringement of a pending patent application. Why? Because the Patent Office is required by law to maintain patent applications in absolute secrecy! Therefore, no one can find out when you filed your application or what it actually relates to - unless you tell them, which you never should. When you have filed your application and put your product on the market, if someone sees it and thinks they might like to copy it, they will see that it is marked "Patent Pending" and they will think, "Gee, if I go to copy that, I may get lots of money tied up in prototypes, tooling, production, inventory, marketing and distribution and, then, just when I am ready to go on the market with it, their patent might issue and I would have to stop - Maybe I'd better copy something else."

Now, this protection is IMMEDIATE - because it takes only the length of time needed for them to go through this mental process and decide they had better copy something else. It is BROAD - because when they look at your device and try to decide what might be patentable about it, for their own protection, they have to give it a broad interpretation.

Finally, it is CHEAP - because it costs nothing more that the cost of filing the application and paying for amendments to keep it alive. Furthermore, this protection comes during the critical period when you are trying to get your product on the market and establish a market position.

Parts of a Patent Application:

In order to obtain a serial number and filing date, you must have a complete application, which consists of a specification including at least one claim, a drawing, the formal papers and a check in the amount of the filing fee.

Specifications:

The specification is the descriptive part of the application. It usually has a short title and a brief opening paragraph which broadly tells the subject matter of the invention. This helps the Patent Office decide where the invention fits into their classification system and, hence, which art unit or examining division will handle the application. After this, the specification contains what I call the "salesmanship" part, in which you tell why the invention is needed or what problems it solves.

After this, comes a brief description of the drawings and, then, a detailed description of the invention. The detailed description refers to the reference numbers in the drawings and tells how the invention is assembled and how it works. Sort of "The kneebone 10 is connected to the leg bone 12 which is connected to the ankle bone 14, etc.".

The specification usually ends with a "catchall" paragraph saying something like "Obviously, numerous variations and modifications can be made without departing from the spirit of the present invention. Therefore, it should be clearly understood that the form of the present invention described above and shown in the figures of the accompanying drawing is illustrative only and is not intended to limit the scope of the present invention". In other words, you are NOT LIMITED by what is described in the detailed description or shown in the drawings.

Many inventors are concerned about variations, but it is not a problem, especially if your application contains a "catchall" paragraph. Finally, the specification must contain at least one claim. We will discuss patent claims later.

Drawings:

First, let's have a word about the drawings. In order to obtain a serial number and filing date, you must have a complete application and a drawing is one part of a complete application. The drawing must be adequate so that, taken with the detailed description, the Examiner can understand the invention sufficiently to make a search. We don't need formal drawings.

Claims:  

Now, let's talk about the claims. As stated above, the specification MUST contain at least one numbered paragraph, which we call "claims". In a patent, the claims are the legal definition of the protection provided by the patent. In a patent application, the claims define what the inventor is trying to protect.

A patent claim is, basically, a one sentence structural and functional definition of the invention. It is required by law to be sufficiently detailed to distinguish your invention from anything that has been known before. At the same time, you want to be broad enough so that, if someone decides to copy your invention, they will either be covered by the claim and, therefore will infringe your patent, or their device will be so different that you don't care. However, there are numerous specialized terms and techniques which patent professionals use in writing claims which are totally unknown to the general public.

For example, the terms "comprising", "consisting of" and "including". You might think that these terms are synonymous. However, in patent language, each term has a special and unique meaning. The term "comprising" means that the device has the components listed in the claim and may or may not have other components. The term "consisting of" means that the device contains only the listed components.

Finally, the term "including" means that the device contains the listed component and definitely does contain other components. Therefore, patent claims are extremely difficult to write! It takes many years of training, in a patent law office, to learn to write good claims. The U.S. Supreme Court has called patent claim writing "The Art of Specific Vaguery". I cannot stress too strongly that you should never try to write your own patent claims! I honestly believe that, if you try to write your own patent claims, you will only hurt yourself. Therefore, I STRONGLY recommend that you get professional help in writing a patent application.

Formal Papers and Check:

The formal papers needed to complete a utility patent application are a Declaration or Oath and, usually, a Small Entity Declaration Form. The Declaration or Oath is a form in which you swear that you believe that you are the original and first inventor of the claimed subject matter and in which you identify any other applications which you have filed relating to the same subject matter.

The Small Entity Declaration Form is one in which you state that you are NOT a major corporation, such as General Motors, Inc. This is important, since the Patent Office has two sets of fees and the fees for Small Entities are HALF those for large entities.

The last part of a complete patent application is a check, made payable to Hon. Commissioner of Patents, covering the filing fee. At the moment, the basic filing fee, for small entities, is $355, however, this can vary, depending on the number and type of claims.

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