An Overview Of The Patent Process

So you have an idea that you would like to patent.

Youve heard that you need to file a patent application. You ask, Where can I get one of these patent applications, so that I can fill it out.

Unfortunately, its not that simple. A patent application is more like a legal brief than a job application or other form you might routinely fill out. Also, getting a patent on your invention involves dealing with the Patent Office, a government agency like any other, that has volumes of rules regarding how to deal with them during what it known as the patent process. The purpose of this article is to present a simplified overview of the major events in the patent process, from beginning to end.

Prior art search

Although a search is not officially part of the patent process, it is universally recommended as a precautionary measure. The search will look for other patents and/or publications on inventions similar to yours. Hopefully, if any such inventions exist, the search will locate them. If any of these found inventions are so close to your invention that pursuing a patent would probably be a waste of time and money, then the search was worthwhile. If the search does not find any other inventions that are close to your invention, the search will usually show what the next closest inventions are. This information might be useful to determine how much of the invention is really new, and how much has been done before. This might either encourage or discourage an inventor from pursuing the invention, when they consider the value of what they have truly invented.

Patent Application

Once the inventor feels confident that a patent is worth pursuing, the next step is to file a patent application to get the ball rolling. A patent application is a legal document that describes the invention in both legal and technical terms. The Patent Office has an abundance of rules that specify exactly how a patent application must be prepared and submitted. Unless the inventor has experience in drafting patent applications, a patent agent or attorney should be hired for the task.

When the patent application is filed, the invention instantly becomes patent pending which means that a patent has been applied for, and the inventor is waiting to see if a patent will be granted.

After the patient application is filed, the waiting game begins. Due to the huge backlog of filed patent applications, it can take the Patent Office months, even years, to review a patent application. On the average, it takes 6 months before the patent office examines the patent application.
Examination

Eventually, the Patent Office will assign the application to an examiner. The examiner is an employee of the Patent Office whose job is to review patent applications and handle all correspondence with the inventor or his agent. The examiner will conduct his own prior art search to look for similar inventions. Then, based upon what he finds in the search, he might either accept or reject the patent application.

If the patent application is allowed by the examiner, it will usually issue into a patent within a few months. However, if it is rejected, the examiner will issue an Office Action explaining why the application is rejected.

There are two major reasons why a patent application will be rejected: First, the invention is not novel enough when considering what others have already invented in the field. Second, the application violates some of the formal Patent Office rules about the form and content of applications.

Amendment

In response to a rejection by the examiner, the inventor or his agent can file an amendment. The amendment is a legal document which either changes portions of the application, argues why it is O.K. as is, or does both.

If the application is rejected because of lack of novelty two approaches can be taken in the amendment. First, if it seems that the examiners reasons are faulty; arguments can be presented to show why the application should be permitted as it stands. Second, amendments can be made to the patent claims. The patent claims are legalistic sentences that define exactly what the patient would cover. Thus, the claims could be amended to cover less of an invention. This narrowing of the claims might make the application more acceptable to the Patent Office.

If the application is rejected because it violated some Patent Office rules, often change can be made to the application to comply with the examiners demands. However, some defects in the application cannot be cured. For example, if the application did not provide enough detail about the invention when it was filed, new information cant be added to fix the problem.

Examination after Amendment

Once the amendment is filed, the examiner will once again review the case and again determine whether the application is allowable. If there are still grounds for rejection, the examiner will issue another Office Action. Often, however, this action will be stamped final. When a final action has been issued, the inventors options are very limited. The rejection is by no means truly final, however, because the fight for a patent can continue if the inventor so wishes. One option is to appeal the examiners decision to the examiners superiors, or even to an appeals court. Another option is to file a continuing application.

Continuing Applications

If the pursuit of your invention hits a dead end such as by receiving a final rejection, a continuing application can be filed. A continuation is a new patent application that describes the identical invention as described in the earlier application. However, the continuation is given the priority date from the earlier application. In other words, when reviewing the continuation application the Patent Office will use the filing date of the earlier application to determine which new inventions can be considered against it. So, if you filed an application in 2006, and aa publication described your invention in 2007, and you file a continuation in 2008, the patent Office cant count the 2007 publication against you when they evaluate the continuation patent application.

Sometimes after filing the application, the inventor makes significant improvements over the invention described in the patent application. To apply for protection for these new features, a continuation-in-part application is filed. The continuation-in-part describes the old invention and adds new features. As in the continuation application described above, the inventor gets credit for the information about the old invention that was contained in the earlier application. So, the continuation-in-part allows an inventor to add improvements to older versions of the invention, while not losing the filing date from the earlier application for the old invention that was contained in the earlier application.

Often, since the continuation or continuation-in-part is filed, the earlier application is abandoned. In other words, from that point on, the inventor only pursues the later application and gives up on pursing the earlier one.

Allowance

Once an application is allowed, as previously mentioned, a patent will usually issue in a few months. First, however, an issue fee must be paid to the Patent Office. When the patent issues, copies will be mailed to the inventor or the attorney. The patent gives the inventor the right to exclude others from making, using or selling the patented invention throughout the United States. The inventor can obtain an injunction in a federal court to stop unauthorized infringement of the patent, and can file suit to collect money damages from infringers. In addition, the inventor has the right to sell or license any and all rights to the invention, or to keep them all to himself.

Maintenance Fees

Patent maintenance fees are due 3 years, 7 years and 11 years after the patent issues. These fees must be paid to keep the patent in effect. Hopefully when these fees become due, the inventor is already realizing revenue from the invention, thus making the payments less painful. In the alternative, as the fees become due, the inventor can evaluate his or her situation to determine if the fee is worth paying, or if the money would be better spent on another project or on refining a different invention.

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