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Patent FAQ


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  What is a patent?
  What can be patented?
  What cannot be patented?
  Who may apply for a patent?
  What do the terms “patent pending” and “patent applied for” mean?
  If two or more persons work together to make an invention, to whom will the patent be granted?
  If a first person furnishes all of the ideas to make an invention and a second person employs the first person or furnishes the money for building and testing the invention, should the patent application be filed by the first and second persons jointly?
  Do I need to hire a lawyer or agent?
  What are patent maintenance fees?
  What is a design patent?
  What is a provisional patent?
  How do I know if my invention is patentable?
  What is a PCT application?
  What is a patentability search?
  Can I conduct my own patentability search?
 
  What is a patent?
 

A patent is a property right granted by the Government of the United States of America to an inventor “to exclude others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States” for a limited time in exchange for public disclosure of the invention when the patent is granted.
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  What can be patented?
 

Any new, non-obvious and useful process, machine, article of manufacture, composition of matter or an improvement of any of the above.

 

Note: In addition to utility patents, encompassing one of the categories above, patent protection is available for (1) ornamental design of an article of manufacture or (2) asexually reproduced plant varieties by design and plant patents.

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  What cannot be patented?
 

Laws of nature, physical phenomena, abstract ideas, literary, dramatic, musical, and artistic works (these can be Copyright protected), and inventions which are not useful (such as perpetual motion machines); or offensive to public morality.
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  Who may apply for a patent?
 

According to the U.S. law, only the inventor may apply for a patent, with certain exceptions. If a person who is not the inventor should apply for a patent, the patent, if it were obtained, would be invalid. The person applying in such a case who falsely states that he/she is the inventor would also be subject to criminal penalties. If the inventor is dead, the application may be made by legal representatives, that is, the administrator or executor of the estate. If the inventor is insane, the application for patent may be made by a guardian. If an inventor refuses to apply for a patent or cannot be found, a joint inventor or, if there is no joint inventor available, a person having a proprietary interest in the invention 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 is not a joint inventor and cannot be joined in the application as an inventor. It is possible to correct an innocent mistake in erroneously omitting an inventor or in erroneously naming a person as an inventor.

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  What do the terms “patent pending” and “patent applied for” mean?
 

They are used by a manufacturer or seller of an article to inform the public that an application for patent on that article is on file in the United States Patent and Trademark Office. The law imposes a fine on those who use these terms falsely to deceive the public.
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  If two or more persons work together to make an invention, to whom will the patent be granted?
 

If each had a share in the ideas forming the invention as defined in the claims – even if only as to one claim, they are joint inventors and a patent will be issued to them jointly on the basis of a proper patent application. If, on the other hand, one of these persons has provided all of the ideas of the invention, and the other has only followed instructions in making it, the person who contributed the ideas is the sole inventor and the patent application and patent shall be in his/her name alone.
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  If a first person furnishes all of the ideas to make an invention and a second person employs the first person or furnishes the money for building and testing the invention, should the patent application be filed by the first and second persons jointly?
 

No. The application must be signed by the true inventor, and filed in the USPTO, in the inventor’s name. This is the person who furnishes the ideas (e.g. the first person in the above fact pattern), not the employer or the person who furnishes the money.
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  Do I need to hire a lawyer or agent?
 

No, you do not have to hire a lawyer or agent to file for a patent on an invention.  It is important to understand the patent application process is complex.  The U.S. Patent & Trademark Office does not assist in the preparation of patent application papers.  If you are ready to apply for a patent, the U.S. Patent & Trademark Office strongly advises you contact a registered patent attorney or agent.
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  What are patent maintenance fees?
 

All utility patents that issue from applications filed on and after December 12, 1980 are subject to the payment of maintenance fees which must be paid to maintain the patent in force. These fees are due at 3 1/2, 7 1/2 and 11 1/2 years from the date the patent is granted and can be paid without a surcharge during the “window-period” which is the six-month period preceding each due date, e.g., three years to three years and six months.
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  What is a design patent?
 

U.S. patent laws provide for the granting of design patents to any person who has invented any new and non-obvious ornamental design for an article of manufacture. The design patent protects only the appearance of an article, but not its structural or functional features.  A design patent has a term of 14 years from grant, and no fees are necessary to maintain a design patent in force.
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  What is a provisional patent?
 

A provisional patent is actually a provisional patent application that can be filed with the U.S. Patent & Trademark Office to provide a legal place holder on your invention for a period of 12 months.

 

You can use this 12 month period to further evaluate the possible success of the invention in the market place before going forward with a higher cost non-provisional patent application.  A provisional patent application allows you to use the phrase "patent pending" during the 12 month period.  A provisional application for a patent (provisional application) has a pendency lasting 12 months from the date the provisional application is filed.

 

The 12-month pendency period cannot be extended. Therefore, an applicant who files a provisional application must file a corresponding non-provisional application for a patent (utility patent application) during the 12-month pendency period of the provisional application in order to benefit from the earlier filing of the provisional application.
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  How do I know if my invention is patentable?
 

If your invention qualifies as patentable subject matter, as discussed above under "What can be patented?", the next step is to conduct a patentability search to determine patent availability on your invention.  A patentability search is a search of all previous public disclosures (prior art) including, but not limited to previously patented inventions in the U.S. (prior art) to determine if your invention has been publicly disclosed and thus is not patentable.
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  What is a PCT application?
 

The Patent Cooperation Treaty (PCT) is an international agreement for filing patent applications having effect in many countries around the world. Although the PCT system does not provide for the grant of “an international patent”, the system simplifies the process of filing patent applications, delays the expenses associated with applying for patent protection in foreign countries, and allows the inventor more time to assess the commercial viability of his/her invention. Under the PCT, an inventor can file a single international patent application in one language with one patent office in order to simultaneously seek protection for an invention in the PCT member countries.
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  What is a patentability search?
 

A patentability search is a search of all previous public disclosures (prior art) including, but not limited to previously patented inventions in the U.S. (prior art) should be conducted to determine if your invention has been publicly disclosed and thus is not patentable.  A search of foreign patents and printed publications can also be conducted.  While a search of the prior art before the filing of an application is not required, it is advisable to do so.  A registered attorney or agent is often a useful resource for performance of a patentability search.  After an application is filed, the U.S. Patent & Trademark Office will conduct a search as part of the official examination process.  
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  Can I conduct my own patentability search?
 

Conducting a thorough patent search is difficult, particularly for the novice.  Patent searching is a learned skill.  However, we recommend if you are considering the filing of a patent application on your invention, you should make an attempt at conducting an initial search on your own to have an understanding of the process.  There are various patent databases publicly available on-line that you can use in conducting your patentability search.

 

You should not assume that your invention has not been patented even if you find no evidence of it being publicly disclosed.  If upon completing your patentability search  you have not discovered any evidence of public disclosure of your invention, it is then advised to engage a professional patent searcher to do a thorough patent search prior to the preparation and filing of a patent application.
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