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works. They are one of the basic forms of intellectual property. A patent is a property right. Essentially, a patent gives the holder the right to exclude others from, among other things, using, selling, and making the claimed invention.
Patents in the United States are governed by the Patent Act (35 U.S. Code), which established the United States Patent and Trademark Office (the USPTO). The most common type of patent is a utility patent. Utility patents have a duration of twenty years from the date of filing, but are not enforceable until the day of issuance. Design patents protect ornamental designs. Plant patents protect new varieties of asexually reproducing plants. To obtain protection under U.S. law, the applicant must submit a patent application to the USPTO, where it will be reviewed by an examiner to determine if the invention is patentable. U.S. law grants to patentees the right to exclude others from making, using, or selling the invention.
in the U.S., a patent is a right to exclude others from making, using, selling, offering for sale, exporting components to be assembled into an infringing device outside the U.S., importing the product of a patented process practiced outside the U.S., inducing others to infringe, offering a product specially adapted for practice of the patent, and a few other very carefully defined categories. The distinctions between what patent rights include are complex. For example, merely thinking about an invention or drawing a diagram is not an infringement. Likewise, research for "purely philosophical" inquiry is not an infringement. Sometimes, this analysis can be much more sophisticated and difficult: i.e., research directed to commercial purposes may be an infringement—but may not be when theresearch is directed toward obtaining approval of the Food and Drug Administration for introduction of a generic version of a patented drug. Under current U.S. law, the term of patent is 20 years from the earliest claimed filing date (which can be extended via Patent Term Adjustment and Patent Term Extension). For applications filed before June 8, 1995, the term is either 17 years from the issue date or 20 years from the earliest claimed domestic priority date, whichever is longer.
Common Differences from U.S. Patent Law: The laws of many countries differ in various respects from the patent law of the United States. In most foreign countries, publication of the invention before the date of the application will bar the right to a patent. This distinction is what makes it advisable to file the U.S. application prior to public disclosure of the patent even though the U.S. patent law provides for a one year grace period. Since other countries do not have such a grace period, the prior disclosure of the invention will prevent the filing of international applications in most cases. Maintenance fees are required in most countries, but they will differ in timing and amount from U.S. maintenance fees. In addition, most countries require that a patented invention be manufactured in that country after a certain period, usually three years. This requirement is generally referred to as the "working requirement." If there is no manufacture within this period, the patent may be void in some countries, although in most countries the patent may be subject to the grant of compulsory licenses to any person who may apply for a license.
Process for Obtaining a Utility Patent
In the United States, a patent provides its proprietor with the right to exclude others from utilizing the invention claimed in that patent. Should a person utilize that invention, without the permission of the patent proprietor, they may infringe that patent. More specifically, an infringement may occur where the defendant has made, used, sold, offered to sell, or imported an infringing invention or its equivalent. No infringement action may be started until the patent is issued. However, pre-grant protection is available under 35 U.S.C. § 154(d), which allows a patent owner to obtain reasonable royalty damages for certain infringing activities that occurred before patent's date of issuance. This right to obtain provisional damages requires a patent holder to show that (1) the infringing activities occurred after the publication of the patent application, (2) the patented claims are substantially identical to the claims in the published application, and (3) the infringer had "actual notice" of the published patent application.
A person directly infringes a patent by making, using, offering to sell, selling, or importing into the US any patented invention, without authority, during the term of the patent.
It covers situations where one actively induces the infringement of a patent by encouraging, aiding, or otherwise causing another person or entity to infringe a patent. A potential inducer must actually be aware of the patent and intend for their actions to result in a third party infringing that patent.
The single most common defense to patent infringement is a counter-attack on the patent itself, i.e., the validity of the patent and the allegedly infringed claims. Even if the patent is valid, the plaintiff must still prove that every element of at least one claim was infringed. In case of a medical procedure patent issued after 1996, a U.S. infringer may also raise a statutory safe harbor defense to infringement.
Providing information on patent programs and agreements dedicated to improving work-sharing and international cooperation among various worldwide Intellectual Property Offices.
Patent Cooperation Treaty - International patent application filing system
Patent Prosecution Highway - Fast track examination of corresponding applications filed in USPTO and various Intellectual Property Offices around the world
Common Application Format - Simplified and streamlined patent application filing requirements for EPO, JPO and USPTO
Common Citation Document - A patent information product to provide single point access to up-to-date citation data relating to the patent applications of the IP5 Offices. It consolidates the prior art cited by all participating offices for the family members of a patent application, thus enabling the search results for the same invention produced by several offices to be visualized on a single page.
New Route - Work-sharing pilot between the USPTO and JPO
Triway - Search sharing pilot between EPO, JPO, and USPTO
SHARE - Work-sharing pilot between the USPTO and KIPO
Patent examination process
Overview – Inventors need to understand the examination process a patent going through the U.S. Patent Office. The process begins with the filing of a patent application and hopefully ends with the issuance of a granted patent; however, that isn’t always the final outcome. It would be reasonable to think that the examination process should only take a couple of months, but the truth is that the patent office has quite a backlog of pending patents and the process could take quite a long time. The Office of Initial Patent Examination usually reviews the applications fairly quickly, but once the application is assigned to an examiner it could take years for the application to be examined. Some art units take less time than others, but biomedical, electrical and business method related art units take the longest. Office of Initial Patent Examination – This is the first place that a patent application goes to in the U.S. Patent Office. This office is primarily concerned with reviewing the components of the patent application to ensure that all of the components of the application are completed. If some component of the application is missing or is improperly prepared, this office will request the proper information or components from the patent applicant. This office will typically assign the patent a serial number as well.
Art Unit – Once the patent application has cleared the Office of Initial Patent Examination, it is assigned to an art unit depending on the technology the invention is primarily concerned with. The application is
usually assigned to an examiner shortly after being assigned to an art unit.
Patent Publication – The U.S. Patent Office will treat any nonprovisional patent application as confidential until the patent application is published. This usually happens 18 months after filing the application. For a fee, the publication can be moved to either an earlier or later date depending on the desires of the inventor. A patent attorney, agent, or the inventor himself may get information on the status of the application from the patent office if requested during this confidential period, but typically no one else can. Many attorneys or agents may be registered users of a program called “Private Pair” which allows the attorney to view the patent office’s internal records and keep track of what happens to the patent application. Once the patent application is published, it is available to the public. The public may search a database containing patent publications or use a program called “Public Pair” which allows anyone to track what happens to the application regardless of their association with the inventor. Patent Examination – One of the first things that an examiner may try to determine is the number of inventions claimed in the application. By law, a patent can only have one claimed invention. If the examiner determines that there is really more than one claimed invention in the application, he will request that the inventor restrict the application to only one. The inventor can file a separate patent application for the other inventions while still keeping the original filing date. When the examiner is satisfied that there is only one invention in each application, he will review the application to determine if the claimed invention is patentable. Rejection – A patent rejection can mean that the examiner has found some reference that he feels describes the claims of the patent application. Examiners may reject claims even when the claims are novel if they simply misunderstand the invention (which is why hiring a patent attorney or agent is a good idea). If this should happen, an inventor shouldn’t worry about receiving an initial rejection. A skilled patent attorney or agent may be able to modify the claims of the patent slightly or present arguments to the examiner to get around the rejection. An attorney will usually involve the inventor before responding to the rejection. Sometimes only a few of the claims will be rejected while other claims are allowed by the examiner. In such a case the patent application will not grant until the attorney can get all of the claims allowed by either amending the claims or persuasively arguing with the examiner. If the examiner does not accept the amendments or
arguments, he may issue a final rejection on the case. Although it sounds final, the inventor still has several options: 1) file another application depending from (meaning linked to) the old application and try to present the invention in such a way that the examiner will allow the application; 2) amend the claims or argue with the examiner again, but if the examiner still doesn’t accept the inventor’s position the application will become abandoned; 3) agree with the examiner and give up on the patent application or 4) file a request and a fee to keep the examination going. An “objection” on a patent application means that there is a format issue, which is usually easier to take care of. Allowance – Allowance of the patent application means that the patent application is accepted, and in due time will become a granted patent. The application will not become a granted patent until an issue fee is paid, and even then it may take six months before the patent office officially issues the patent. Patent Term – A granted patent will generally expire 20 years after the filing date of the patent application. This means that part of the term of the patent application will be consumed while it is still pending in the patent office. Before 1995, patent law said that the term of a patent would be 17 years from the issue date of the patent. But since there were some problems with inventors trying to extend the life of their patents by extending the time period that the applications were pending in the patent office, it was changed to 20 years form the filing date of the patent application to encourage inventors to push their applications through the patent office instead of creating more work for them. A patent owner must also pay maintenance fees in order to keep his patent alive. Maintenance fees are currently due before the fourth year, the eighth year, and the twelfth year after the patent grants. Fees are subject to change every year, so it is important to keep up-to-date with the fee schedule provided by the patent office. Patent Term Adjustment – Due to the backlog of pending patents in the patent office and their shortage of patent examiners, a patent application may not be reviewed for at least a year. Some art units, such as those involved with electronics, biomedical, and business technologies are averaging close to a five year wait before a patent examiner reviews their patent applications. If a patent is granted, it will expire 20 years from the filing date of the patent application. If the patent office takes longer than three years to examine and grant a patent, the term of the patent may be adjusted accordingly. In some ways it may be beneficial to the inventor to have a long wait since the life of his patent will be extended. In other situations, this may hurt the inventor because investors or potential
licensees may want to see if the patent application grants before they pay royalties to the inventor.
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