Losing the Right to Patent

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 What are Intellectual Property Laws?

Intellectual property laws provide privileges and protections for owners and inventors of certain types of intellectual property. These laws were created to encourage and protect individuals’ new ideas, creating new technologies and artistic creativity for the economic growth of the United States.

Because of the protections provided by intellectual property laws, the owner of intellectual property can have confidence that their creative work and ideas will be protected, so they will be more likely to share their property.

Several different types of intellectual property are under the umbrella of intellectual property law, including:

What is a Patent?

A patent for an invention provides property rights to the inventor. A patent is issued by the United States Patent Trademark Office (USPTO).

Typically, patents last for 20 years from when the patent application is filed. Patents are only effective in the United States.

Obtaining a patent is time-consuming and may take as long as 5 years. The process of obtaining a patent involves the following:

What Legal Protections Do Patent Owners Have?

Once the USPTO has granted an inventor a patent, no other party can legally argue that the invention or idea is their own. This means the patent holder owns all of the rights to the patented invention or idea.

A patent holder is also permitted to bring an enforcement action in court to prevent a party from continuing any action that involves the patented invention or idea. If the patent owner is successful in their patent enforcement action, they may be awarded damages.

It is important to note that patent owners have these rights during the application process while their patent application is pending with the USPTO. If an individual does not have a patent, any other individual may copy or steal their idea.

How Do I Get a Patent?

An individual should take several basic steps before filing their patent application with the USPTO. An individual should conduct a patent search to determine if there are other similar inventions.

A patent search allows the inventor to ensure that their invention qualifies for patent protection. The USPTO has specific rules that must be followed to obtain a patent.

An individual, assuming they are a first-time applicant, will first file an original application packet that includes the claims of the invention. This application should include the following:

  • Any drawings that are relevant to the invention;
  • A declaration of inventorship;
  • A power of attorney, if there is an attorney representing the applicant’s interests; and
  • The required application fee.

Once the patent application is filed with the USPTO, it is reviewed by a patent examiner trained in the field where the invention is relevant. Typically, the examiner will send the applicant a letter asking them questions about their application or requiring them to make changes.

These requests are referred to as office actions. The applicant must respond to the office action by making the requested change or amendment to the application. Alternatively, the individual can argue with the examiner regarding the objections provided in the office action.

This first office action typically takes about 6 to 8 months. After reviewing the applicant’s response to the first action, the examiner will issue the patent or send the applicant a second-office action.

A second office action typically addresses new problems that the applicant’s response to the first office action created. The second office action process may take up to one year.

Once the applicant has responded to the second office action, the examiner must issue a patent or reject the application. The applicant can appeal the USPTO’s denial if the patent application is rejected.

An appeal can take up to two more years to complete. Once the examiner is satisfied with the application, they will make an allowance, and the applicant will then be required to pay the issuance fee.

Once the issuance fee is paid, the applicant then owns exclusive rights to the invention that do not exceed 20 years from the original application date. The time from allowance to issuance may be up to 1 year.

How Much Will a Patent Cost to Get?

The bare minimum cost of the entire patent process, including attorney’s fees, may take approximately $1000 to $4000 for a simple electrical or mechanical invention or around $10,000 to $20,000 for a complex high-tech or computer product. Those numbers do not include the additional costs incurred in the appeals process.

How Long Does a Patent Last?

All patents filed on or after June 8, 1995, last from the date the patent was issued and end 20 years from the date the patent application was filed in the United States. This 20-year term is the general rule.

It is important to note that maintenance fees must be paid during the patent’s life to keep it in force. A design patent lasts 14 years from the date the patent was granted.

When is the Right to Patent Lost?

In some cases, even if an inventor’s invention meets the novelty requirement, they will not be able to patent the invention because they waited too long to apply. This is referred to as the loss of the right to patent.

When Do I Have to File a Patent Application?

For an individual to avoid losing their right to patent their invention, they must file for a patent within 1 year after their invention becomes public knowledge.

When Does My Invention Become Public Knowledge?

Essentially, it is considered public knowledge at any time the public becomes aware of the invention and how to make it. It does not matter if only a few individuals are aware of the intention, if the inventor had no intention of making it public knowledge or if the inventor was not aware that it was public knowledge.

Common ways in which an invention may become public knowledge include:

  • The inventor or a third party discloses it in any printed publication anywhere in the world;
  • The inventor or a third party begins selling it in the United States; and
  • The inventor or a third party patents the invention in a foreign country.

Even if the invention is not technically public use, under certain circumstances, an inventor will still lose their patent rights. For example, a secret use by the inventor for a commercial purpose would be considered public use.

Are There Any Exceptions to the Loss of Right Rule?

An experimental use by the inventor is not a public use, even if the experimental use makes the invention available to the public. For example, utilizing a new type of pavement on a public road to test its durability and usefulness when undergoing everyday wear and tear was not considered a public use because it was an experimental use.

If the experimental use was also commercial, it is more likely to be considered public use.

Do I Need a Patent Attorney?

If you are considering patenting your invention but are concerned about losing a right, it may be helpful to consult with a patent attorney who can assist you throughout the patent process. Your attorney can assist you with navigating through the complex issues in patent law cases.

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