Wednesday, January 5, 2005
There are two sources for the laws and rules covered in the MPEP. The first is described in "United States Code Title 35 - Patents". The second source includes the rules described in the "Code of Federal Regulations - Patents, Trademarks and Copyrights". As far as patent law is concerned, you only need to worry about the Regulations covered in the Patent section of the code.
The MPEP includes all the relevant laws and rules you need to know in order to gain a patent. Within it, every angle of each law and rule is covered, in addition to the forms used to file a patent application. The writers of the MPEP have also made sure to fill it up with important court case citations used over the years to help establish the laws and rules of the Patent Office.
Now, we are not suggesting that any inventor (at least not one in his/her right mind) just sit down with the MPEP and begin reading. No way. You don't need to do that to yourself. That's what a patent attorney or agent is for. But you should be familiar with some of the rules and regulations of patents before you charge off to get one. You may want to check-out the Inventor's Patent Workshop, it's a home study course to get you moving in the right direction.
Sunday, January 2, 2005
Who will be there when things go wrong?
Due to the trouble, expense and the risks involved with gaining a patent, you might be lulled into thinking that the government will be there to lend you a helping hand when it comes time to enforce the rights your patented invention.
Sorry, but this is pretty far off base.
In reality, once a patent is issued, the inventor or patent owner (i.e. you!) must enforce the patent without the aid of the USPTO. So, if your patent is infringed upon, it is all up to you to finance any lawsuits that may arise.
Unfortunately, no one will be there to police other companies from making or selling your invention. You will have to keep a sharp eye out on your own. Luckily, the U.S. legal system is set-up so that you may always retroactively sue for damages. That means if you don’t catch these thieves in the act, you can still initiate a lawsuit against any them and have them tried in a court of law.
As you are probably aware, infringement cases are common. In fact, so common you can hardly turn on the news these days without hearing of a legal battle between big corporations. Some of the biggest involve biotechnology-related patents. These cases can be so wild since it's tough to determine where the line of infringement ends and begins. Biotechnology patents only became prevalent in the last couple of decades. The Patent Office hasn't quite got them sorted out (and it's possible they never will).
Saturday, January 1, 2005
Are successful inventors just lucky or is there a strategy for coming up with these golden ideas?
Many say, a strategy does exist.
Think about what types of problems you would like to solve. As an inventor, that is your goal. The trick is to come up with a unique invention that is the solution to a specific problem.
That's really what all marketable products attempt to accomplish. For the skeptics, let's go through a few examples. Take aspirin. It attempts (and actually accomplishes for many people) to solve the problem of pain. A board game like checkers attempts to solve the problem of boredom. The Ginsu knife you see advertised on late night infomercials attempts to solve the problem of slicing food.
Essentially, all products attempt to solve a specific problem. Therefore, your first step is to determine what specific problem you want to work on finding a solution to.
One of the best ways to generate ideas for solving problems is to focus on the solutions that already exist. So, you need to read up on your problem area of interest. If you know what is already available, you can recognize the unsolved problems that still exist. From there, you can focus on the existing problems and attempt to solve them with your own unique solution. This unique solution will ultimately become your invention!
Now, how do you become an expert in the products that already exist in your area of interest? Here's a tip; once something is patented, it must be fully disclosed and accessible to the public. Therefore, everything you need is right at your fingertips.
By searching through old patents and other publications (like even magazines and journals), you will become an expert in your field. Keep track of the products that already exist for the problem you are interested in solving. Take detailed notes on the features of each of these inventions. Check to see who owns these inventions (this is available for patent records).
Are these inventions currently marketed? For those that are, find out how much the item sells for. Look into how it is marketed. Is it popular? Who manufactures and sells it?
All this research is of the utmost importance. If you focus on doing something YOU like, and never consider whether or not anyone will buy your product, you won't make any money! Successful inventors dream up a good product that is needed by consumers and has a solid market.
If you spend the time researching old and existing patents and pay attention to their marketability, you will not only generate ideas, but in all likelihood, your ideas will be profitable.
To summarize, the key is to recognize and focus on what consumers need and want in your area of expertise. Research patents, publications, catalogs and even the consumers themselves! Conduct surveys and determine what your consumers want.
Final note: Make a product based on the consumer's wants and needs and you stand a good chance of becoming wildly successful.
Just When Should You File Your Patent?
Timing can be everything.
If you file too early, you may be wasting your time. If you file too late, you could ruin your chances of gaining a patent.
So you've come up with an idea for a great new invention? You've figured out all the details and can make the thing work. You should just file a patent now, right? Well, not quite yet.
To begin with, there are a number of things you can and should do before you ever spend a dime to file a patent. First things first, you need to do some market research. Chances are you want to make money out of this. So it follows, why would you ever want to pursue an invention that no one will buy? Obviously, you don't!
To determine if your invention is marketable, you should check out products similar to yours. Find out how much these similar products sell for. What are their unique features?
Next, estimate the potential marketability of your idea based on how your product differs from the competition. What will it cost to manufacture your invention? How much could you charge for it? Do your invention's unique features open up any other markets?
From your research, estimate the number of potential customers you may have. You don't need to pay anyone to do this for you, especially not a fraudulent invention submission company. Just pull up your sleeves and get to work.
Once you've decided that making money from your invention is a possibility, you need to convince yourself that it really is new. Obviously, you don't want to pursue your idea if it's already been invented. You can't get a patent on an old idea. Therefore, if your idea isn't new, you don't want to spend the time or money to file a patent. You can determine if your idea is new by performing a preliminary patent search. Check the USPTO's website for existing patents to start with.
If after your search, nothing comes up, consider delving into things a little further. You may want to hire a professional patent searcher before you begin the process for filing a patent. A professional will scan everything that could potentially get in the way of your patent. Unbeknownst to many uneducated inventors, even if your idea was never patented before, it may not be a new invention.
If your idea was ever written about before, you will not be eligible for your patent. See our Inventor’s Patent Workshop for the specific details on what may bar a patent from being granted. You may be surprised, an uneducated inventor can mess this part up all on their own!
Only after you have a professional patent search performed, or you spend some quality time delving into the literature yourself, and have wholeheartedly convinced yourself that your invention really is new, should you begin the process of filing a patent.
Be forewarned, diligence with every step is crucial, especially if you develop a hot product in a competitive field. Taking year long or even month long breaks between every step of this process is not a good idea. You risk losing the race.
To summarize, here are the basic factors you need to address before you ever file a patent:
- Your invention works. You need all the details of your invention in order to file a patent. General, vague ideas just aren't enough.
- Check its marketability. Don't pursue an invention that no one will buy or that you can't make a profit on.
- Determine that it is new. If you file a patent without performing a thorough patent search first, you risk wasting time and money.
More on the topic of patentability.
For an object or idea to be patentable, it must fit into one of the following four categories; process, manufacture, machine or composition of matter. The subject matter must also be original, an unmodified, previously existing invention is never patentable. There must be a significant improvement over previous inventions for the new one to qualify. If two previous inventions are combined together, the combination must yield new and unexpected results for the invention to be considered patentable.
In addition, an invention must be useful and must actually work in order for it to be patentable. A useful invention is one in which the object already has a utility without anyone having to pursue further research to identify or reasonably confirm the utility. So, if you’ve invented a nifty little widget or doodad, but haven’t got a clue as to what it could be used for, the PTO isn’t going to be impressed and won’t give you a patent.
On the bright side, if an invention does not accomplish all of its intended function or it only has partial success, it may still be patentable. In the case of newly developed drugs, the claimed invention only needs to treat a single symptom of an incurable disease for it to have usefulness. The Patent Office isn't as strict on drugs and treatments (that's where the Food and Drug Administration come in).
What can be protected?
Determining what qualifies as a patentable invention is a highly difficult and complicated task. The MPEP states that “Anything under the sun that was invented by man qualifies as patentable”. Simple enough, but if you notice, following this statement is hundreds of pages full of exceptions and details on the idea of patentability. Scores of appeals and patent court cases have arisen due to questions regarding patentability because it still hasn’t, and probably never will be, entirely pinned down.
So, defining what is patentable is not as clear cut as black and white. Inventions can encompass a wide variety of areas, even living subject matter so long as the subject matter is the result of human intervention. An example of a patentable living organism is a microorganism or a plant which is produced or altered through genetic engineering. The key is that the living matter must be a product of “human ingenuity” and not merely a naturally occurring object, such as a shrimp with its digestive tract removed. The living matter must be altered to yield unique properties for it to be patentable.
However, the alteration can even be the mere fact that the living matter is simply isolated or purified. For example, unaltered pieces of DNA may be patentable provided they have been sequenced. The PTO has decided that the act of isolating and sequencing a strand of DNA is the result of human intervention. Currently, there is huge debate surrounding the patenting of biotechnology related “inventions” like DNA. Is a piece of DNA really an invention at all? Or what about a microorganism that happens to degrade oil? Is that an invention? Who knows? We can only hope that maybe someday the PTO will have it all sorted out.
The PTO has established that laws or forces of nature are not deemed patentable. Examples of these include, but are not limited to, the law of gravity or E=mc2. At least the PTO has gotten that far. Computer related inventions may or may not be patentable. Computer programs that have a function when used with a computer are definitely patentable subject matter. Merely recording information (like music, literary works or data) on a computer-readable medium will not result in a patentable idea.
Part 1 - Short Guide to Patent Protection and Patentability
Discover what can be patented and what that means for you.
Patent protection has been granted to cover many products. From the light bulb to the jet engine, patented products are everywhere. Pharmaceutical drugs, computer software, processes for purifying DNA and even some ecommerce methods have all been granted patent protection.
But for all the products that are patentable, there are probably at least an equal number of unpatentable ones. Literary works, movies, songs and music are not eligible for patent protection. These types of products may be protected by a copyright. For more information on copyrights, you may see the Library of Congress.
And, you cannot gain patent protection for your logo or your product's name. Instead, you may file for a trademark. To apply for a trademark, you need to visit the Patent and Trademark Office website and learn about trademarks.
To get back on the right track, patent protection (generally speaking of course, it depends whether the criteria for patentability are met) may be granted to:
- objects with a utility
- and plants
Most patented objects fit under the utility category. And these are usually the most profitable. If your invention has any use whatsoever, you should file a utility patent to gain the most protection. Design patents only cover the way an object looks. Plant patents, as you can guess, are only granted for new breeds of plants.
Now that you know a little about what types of products may be eligible for patent protection (sorry, but this is just a small sample of what you need to know about patentability), let's address exactly what patent protection offers you.
If you are granted patent protection on your product, you may exclude others from making or using it. That's right; you will be in complete control of your invention's productivity and its sales. Therefore, you make any profits generated from it. Patent protection provides you with a monopoly on your invention. For utility patents, that monopoly lasts 20 years (which may add up to quite a sum of money if your invention is popular).
But wait a minute, what happens after the 20 years term is over? Well, once your patent term expires, anyone may make and sell your invention, and they won't have to share a dime of the profits with you. It may not seem fair since the invention was all your idea, but, all good things must come to an end. Patent protection doesn't last forever.