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Got an idea? Want to patent it? Read this first.

Photonics Spectra
Sep 2008
Amanda D. Francoeur

Have an invention that needs a patent but unsure how to go about getting one? Well, this article is for you. We will take you step-by-step through the requirements of applying for a patent.

First, a so-called utility patent provides you with exclusive rights for an invention during a period of 20 years, on the premise that your invention is innovative, useful and aids in the advancement of technology. The patent benefits you because it ensures that no other person or company can manufacture, sell or use your invention unless licensed by you to do so.

Call your lawyer

Applying for a patent can be difficult, expensive and time-sensitive, however, so a patent lawyer is pretty much a necessity to help to compile the data in order to fulfill the requirements imposed by the US Patent and Trademark Office.

Several elements must be included in a utility patent application. The first is the introduction, which includes the name, residence and citizenship of the inventor(s) along with the title of the invention. Following that are the identification — by number and filing date — of any prior applications, whether made personally or from which the invention benefits. Recognition also must be given to any federally sponsored research in the development of the invention. The application must contain a brief statement of the technical field to which the invention relates and any references to problems of prior art from which the invention derived.

The most important aspect of the application is the detailed description of how the invention was made and the way in which it operates. The explanation should be so precise that any person of ordinary skill in the same subject matter could create and use the invention without difficulty. Drawings also may be requested for further understanding. Lastly, a claim is required in defining the subject matter of the invention and in what the patent is being derived to protect. The application must end with an oath swearing to the validity of the invention.

Next step: Review

Once filed, an examiner from the US Patent and Trademark Office will review the application to ensure that it meets five mandatory conditions.

The first is patentable subject matter, affirming that the invention does not fall under the laws of nature, of natural phenomena or of abstract ideas. Second is the utility requirement, where the invention must be useful in association with machines, human-made products, compositions of matter or processing methods. The third requirement is the novelty of the invention. The idea must not be presented to the public before the filing date nor can the application replicate another patent unless it has been abandoned. The fourth condition, nonobviousness, states that if the device is a modification of prior art, it must be unrecognizable to a skilled person in the field of invention. The final condition pertains to the adequacy and clarity of the description included in the application.

If an application is denied for any reason, the US Patent and Trademark Office will notify the inventor of the provisions that the invention failed to meet. The inventor has the right to accept or reject the decision and either fix the problem or write an appeal to the Board of Patent Appeals and Interference.

Upon acceptance of a patent, the inventor must pay maintenance fees throughout the duration of the 20-year term to sustain the patent’s validation. During that time, the patent may be sold, leased, traded, assigned to another party or abandoned. If licensed to a second party, the inventor may claim a single royalty for a usage fee.

Typically, the application process takes many months of review by an examiner before a decision is made to accept or reject the invention. It is acceptable to manufacture and sell an invention with the term “patent pending,” but in doing so the invention is not protected from infringement by other parties. The label warns only of potential damages that could arise once the patent is issued.

Infringement is defined as a direct or indirect violation of a patent. Direct infringement is based on a second party purposely making or distributing an invention without authority from the inventor. Indirect infringement results in a third party inadvertently duplicating an invention within his or her own patent application.

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