Intellectual Property Introductory Series: Patent Basics | Levinfeld Pearlstein, LLC

Intellectual Property Introductory Series: Patent Basics |  Levinfeld Pearlstein, LLC

Intellectual property laws can be confusing and overwhelming. To help you navigate this complex web, we offer an introductory series on intellectual property to share the foundations of intellectual property laws, including patents, trademarks, copyrights, and trade secrets.

A patent does not give its owner the right to do so Do anything. Rather, it gives the patent owner the right to do so Exclude others of making, using, selling, offering for sale and/or importing the claimed invention, which can often be a device, method, chemical composition or decorative design.

Patent requirements

US patents protect any new and useful non-obvious process, machine, manufacture, composition of matter, or any new and useful improvement thereof. “Invention” is no A patent can be obtained if it claims a law of nature, a physical phenomenon, or an abstract idea.

  1. New (or novel): To meet this standard, this matter cannot currently be patented, described in a printed publication, or used in the public domain. In addition, it cannot be for sale or available to the public prior to the actual date of application. There are some exceptions to the new/new standards in the US, including:
  2. Disclosures made less than one year before the filing are made directly or indirectly by the inventor or the person who acquired the subject matter from the inventor.
  3. If the subject matter appears in a patent or application published by another person, and the subject matter was obtained directly or indirectly from the inventor.
  4. useful: Basically, any use can be considered beneficial. However, subject matter that has only speculative use or a use that is not currently possible, such as a perpetual motion machine or cold fusion (at least not yet), is not patentable.
  • Unclear: An invention meets this requirement if the differences between what is claimed for a patent and the prior art are not obvious to a person of ordinary skill in the relevant industry at the time the invention is filed. Some of the current tests used to show that an invention was obvious include:
  • Combining elements of the above technique according to known methods to obtain predictable results.
  • Simple replacement of a known element with another to obtain predictable results.
  • Using well-known technology to improve similar devices in the same way.
  • Applying a known technique to a known device that is ready to be optimized to produce predictable results.
  • Choose from a limited number of specific and predictable solutions with a reasonable expectation of success.
  • Variations of known work in one field of business for use either in the same field or in a different field based on design incentives or other market forces if the variations are predictable to a person of ordinary skill in the art.

Types of patents

There are three types of patents in the United States:

  1. FeasibilityProtects the structure and/or function of the invention. The term of a US patent begins on the date the patent is issued and continues for 20 years from the earliest US priority date (excluding provisional applications). If a patent is issued from a first-filed application, the term lasts for 20 years from the filing date. If a patent is issued from a “continuous” or “split” application, the term extends for 20 years from the filing date of the earliest “parent” application.
  2. design: Protects the appearance and aesthetics of the item/invention (decorative appearance). The term of a design patent begins on the date the patent is issued and lasts for 15 years.
  3. plants: Protects distinct and new plant varieties that reproduce asexually.

Patent application requirements

A patent application has three main parts:

  1. Customize: describes an invention such that one can make and use the invention without unnecessary experimentation. The specifications must be proportionate in scope to the invention as required.
  2. Graphics: Show all the details and claimed features of the invention.
  3. Claims: Determine the scope (i.e. measures and limits of protection) of the patent.

Establishment of the invention

As a cornerstone of innovation, Imagine It is the configuration in the inventor’s mindA specific and permanent idea of ​​a complete and operational invention – That is, the idea must be applied practically. An idea is definite and lasting enough only when it is Normal skill It will be necessary to convert the invention into practice (create a working model) without extensive research or experimentation. For joint inventors, each joint inventor must generally contribute to the conception of the invention.

When should an application for patent protection be submitted?

A patent application must be filed before the invention is disclosed – even if a confidentiality and non-disclosure agreement is in place. However, such agreements can help preserve the right to patent protection when used properly. If a provisional patent application is filed first, a regular non-provisional patent application (U.S. patent application) and/or foreign application(s) must be filed within one year of the filing date of the provisional application.

Benefits of applying for patent protection

A patent does not give you the right to do or make anything. Rather, it gives you the right to do so Exclude Others make, use, sell, offer for sale and/or import the patented invention in the jurisdiction in which the patent was issued.

Particularly in the United States, a patent may also give you the right, in certain circumstances, to prevent others from actively abetting another person’s infringement, contributing to another person’s infringement, and importing into the United States a product that is manufactured by a patented process US if the importation occurs during the term of the patent.

Among the benefits of filing for patent protection are the following:

  • The ability to exclude others from practicing your invention.
  • The right to use the term “patent pending” while an application is pending.
  • An opportunity to build market perception of the innovation.
  • An opportunity to differentiate a product offering from that of a competing product.

Risks of disclosing your invention

Under current U.S. patent laws, you have one year after you publicly disclose, sell, or offer to sell your invention before you must apply for a patent. Essentially, you have a one-year grace period before you have to apply for a patent. Once the grace period expires, you will irrevocably lose the ability to obtain a valid patent.

In most other countries, including those in the European Union, there is no grace period, so once you disclose your invention publicly, you irrevocably lose the ability to obtain a patent for that invention. These countries are referred to as absolute novelty countries, and are clearly in conflict with US patent laws.

To avoid losing rights outside the United States, it is important to have a patent application on file before The first public disclosure of the invention. This can be done by filing a provisional patent application prior to disclosure. Public disclosure can be avoided by disclosing or demonstrating the invention under a confidentiality agreement.

Tips for working with third-party vendors

To reduce the risk of public disclosures that could harm your ability to obtain patent protection, consider the following tips and best practices when working with third-party vendors:

  • Always obtain a confidentiality and non-disclosure agreement before disclosing information that you believe is an “invention.”
  • Be sure to identify confidential information and specifically identify materials that are considered a trade secret.
  • Remember that public disclosure may negatively impact the ability to obtain patent protection and may also negate any claims to trade secret protection.
  • Under patent laws, the invention “belongs” to the inventor, or in some cases, to the inventor’s employer.
  • When working with outside vendors, a jointly designed invention will belong to both inventors or employers unless there is an agreement otherwise.
  • If possible, before you start working with a third-party vendor, obtain an agreement stating that any invention is yours.
  • If it is not possible to obtain an agreement that clearly states that any invention is yours, consider entering into an agreement that gives you an exclusive right to the invention in relation to any of your businesses/product lines.
  • Ensure you reach agreement with appropriate terms regarding time and scope, including geographical location and within the product line.

Main sockets

First, don’t tell the world about your great new invention without first talking to an intellectual property lawyer. If you are not the first to file, you may lose your rights.

Second, think about what you can market and consider two things: (1) Is it worth patenting, and (2) Could it infringe someone else’s patent?

Finally, if you work with outside contractors or consultants, make sure they enter into a confidentiality or non-disclosure agreement that also specifies the inventions/ownership to you.

(See source.)

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