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Obtaining broad, high quality software patent protection requires highly specialized legal and technical software patent expertise, and the investment of several thousands dollars- typically at a cost of about $7-12K to prepare and file the software Utility patent application (which is how to patent your idea). However, if you are a small entity (i.e., a small business with < 50 employees, start-up, or individual) on a relatively limited budget due to the recession, we, can provide you fee reduction assistance (about 50% off; i.e., $3,000-$5,000) when our docket permits.

Currently, given the relatively slow economy, we have some spare capacity with regard to small entity casework, so you can now take advantage of a low, all inclusive, flat-fee offer (as low as $3500 for full Utility patents with full patent search, and $1500 for quality provisional patents).

SPECIAL OFFER: Just follow click on this Small Entity Special Offer link for more details.

As experts in software patents, our legal practice has been very successful in winning valuable patents (click here for 100's of sample patents) for our clients. Clients of the firm always deal directly with our principle partner, Ariel Bentolila, on all of their legal matters, and are assured personal attention, open and direct communication, and the highest quality legal services, which we have consistently rendered to well over 1000 clients served over our 10 years of legal practice. We look forward to adding you to our ever growing ranks of satisfied clients (click here for representative client endorsements).

 

The software patent Controversy 
In re Bilski in 2008 - landmark decision affirming Software Patents
 
Drafting Software Patents
 
Examination of Software Patents
 
Patentability and Validity of Software Inventions
 
Scope of Software patents

 

Software Patent Overview

Under current law, software is patentable subject matter in the USA so long at is executed on a machine (e.g., a computer) or stored on a computer readable medium.

Some of the economic effects of software/Internet/business method Patents to society are as follows:

  • Creates an incentive for research and new process/product development.
  • Encourages disclosure of inventions.
  • Provides an entrepreneurial opportunity for small entities to compete against and profit from large companies.
  • Facilitates the entry of new (small) firms with a limited asset base or difficulties in obtaining finance.
  • Creates a neatly packaged negotiable IP right.

The relative economic significance of each of these effects varies strongly from one industry to another. 
Patents can cost tens of thousands of dollars to acquire; patent litigation can cost millions of dollars; and patent licensing could earn companies hundreds of millions of dollars a year. Over half a billion dollars a year is spent on patent applications, and licensing revenues are in the tens of billions of dollars. In many cases, the economics of patenting is often a more important consideration than the legal aspects.



Why patent your software/Internet/business method?

Lawsuits for unintentional software/Internet/business method patent (e.g., e-commerce) infringement can destroy small companies, which is a strong reason to secure a patent first, before your competitor does. Unfortunately, small to mid size companies cannot afford to patent all the software/Internet/business method innovations they may have, as such patent costs, on average, $20,000. Our unique approach enables us to prepare high quality software/Internet/business method patent applications for about $4-5,000, which enables even a small company to selectively build a patent portfolio that has a far greater chance of success over betting all your limited resources on a single aspect or idea of your many innovations. It is very hard to predict, which idea will be the winner in the market place, and the more broad the patent portfolio the more likely you are to secure Venture Capital (VC) funding, own intellectual property (IP) that has a market for licensing, and/or owning IP that can be profitably sold. With regard to VC funding or initial public offerings, software/Internet/business method patents resulting from the production of patentable ideas often increases the valuation of small companies.


Software/Internet/business patents are particularly well suited for creating a licensing and litigation-only company that generates significant patent revenue without incremental capital investment or developmental effort. Many litigation companies are generally available to help small companies who own valuable software/Internet/business patents by providing deep pockets in case a small company's patents are infringed. The litigation company will fund the legal expenses of a lawsuit (typically 2 to 10 million US dollars) so that a small company can afford to bring a patent infringement lawsuit against a big company that is infringing their patents. In exchange, the litigation company receives a substantial fraction of the settlement. Litigation companies also provide a means for investors in small companies to recover some of their investment should the small company go out of business. The litigation company will buy the patents and investors will often recover at least some of their funds. 


Copyrights and Software

A copyright is the right of an author(s) to prevent others from copying their creative work without a license. Thus the author of a particular piece of software can sue someone that copies that software without a license. However, copyrights cannot protect the "idea" or functionality of the innovation, so a substantial modification of the software code that achieve the same functionality may not be protected. That is, for software patents, copyrights only protect the unique text of authorship, and is completely insufficient to protect the underlying function in a computer program and copying must be proven. Patents are therefore an essential part of the intellectual property framework. Software patents can cover aspects of an invention that are arguably more appropriate to cover in copyright. Strict limits should therefore be placed on what aspects of software are sought for patenting even though such limits are not in place (US) or are not clearly defined (Europe).


Software patents and International Patent Law

The United States has led in creating companies, creating jobs, because it has had the best intellectual-property system. However, protection for software and business methods by patents is limited scope in some other countries. For example, software/Internet/business method inventions can only be patented in Europe if they provide a non-obvious "technical contribution", which reduces the chance of patents being granted on mere algorithms with no technical effect or the granting of "trivial" patents with no inventive step. Other countries such as the US, Australia and Japan do not have the same limits on software/Internet/business method patents and this has put pressure on Europe to expand the scope of protection.

The first step in getting a patent is to file a patent application. Even at this early stage European patent law differs from American law. In the U.S., the person who may claim a patent for an invention must be the inventor. This is known as the first-to-invent rule, a rule that, though seemingly fairer on its face, has proved troublesome at times. Europe is more pragmatic; whoever files a iPhone app Software Patent application first is presumed to be the inventor (first-to-file rule). The purpose of the first-to-file system is to discourage inventors from withholding an invention, while at the same time unburdening the patent office.

Regarding the Application Process, despite the recent addition of inter partes appeals, the patenting process is still primarily an ex parte endeavor in the US, with the Patent Office on the one side and the inventor on the other. In Europe, anyone can oppose a pending patent. Such opposition is handled by the Patent Office's Opposition Division, whose decisions can be appealed to the Board of Appeal. This process helps the Patent Office discovering prior art, working against inventors who would prefer to hide work from the examiner that could endanger the patentability of her invention (behavior that is countered by the duty to candor in the US). Since competitors already had their chance to invalidate, a European patent carries a higher presumption of validity than a US patent. Applying for a patent in Europe also automatically entails publication of the invention. This is not necessarily true in the US

The Best Mode Dilemma

The lack of a best mode requirement in Europe can lead to problematic situations for European inventors, who want to extend their rights across the ocean. Failure to include the non-mandatory best mode in the description of the European patent application may lead to loss of patentability in the US

The Paris Convention provides that "[a]ny person who has duly filed an application for a patent . . . shall enjoy, for the purpose of filing in the other countries, a right of priority." This priority treatment is available for a period of twelve months. The patent is barred entirely in the US twelve months after the foreign iPhone app Software Patent application has been submitted and the patent has been granted.

The best mode requirement does not only apply to the later application in the US, however, but also to the original, foreign application. Hence an inventor who has filed for a patent in Europe without describing the best mode may lose his chance to file for a patent for the same invention in the US due to intermediate disclosure by another, which renders the invention obvious.

Term of Protection 

Under the TRIPS agreement, the patent term is twenty years from the filing date both in the United States and Europe. The United States has adjusted the term in compliance with the TRIPS agreement from formerly seventeen years from the date of grant. In Europe, the filing date already functioned as the priority date, with terms differing from country to country. Germany, for example, used to have an eighteen-year term while in the United Kingdom it was sixteen years.

Duty to License

No duty to license exists in the US The exercise of a patent monopoly is only limited by antitrust laws. In Europe, national laws apply: A European patent is more like a bundle of patents, one for each country, rather than a single overarching patent. In fact, grantors are required to file applications with the patent office of every member country where protection is sought; those offices simply cannot deny a patent anymore after the EPO has granted it. Still, each country will subject the patent to its own national laws.

At least some European countries such as the UK, France, and Germany have compulsory license statutes. All of these countries - as well as the European Community - also have antitrust statutes, which may impose additional limits on the patent monopoly.


The software patent Controversy

Although critics of software/Internet/business method patent patents contend such patents allow large companies to drive small competitors out of the market, in practice, the effect is the opposite: strong patent protection allows small organizations to compete with the largest businesses. Unauthorized infringing use of a patented invention can drive the inventor out of the market; often, small entities can compete with the vastly greater marketing and financial muscle of large corporations only by having exclusive rights in their developments, a fact that is recognized by the investment community. Historically, the software and e-commerce industries have failed to recognize the benefits of broadly enforced patent rights.

Acceptance of business method patents evolved slowly from a recognition by the courts that such patents were never really prohibited, and that the 1952 Patent Act cannot reasonably be construed to exclude business methods from patentable subject matter.

The opportunities for unfettered business method patents ballooned with the decision by Court of Appeals for the Federal Circuit in State Street Bank (see State Street Bank & Trust Co. v. Signature Financial Group, Inc., 149 F.3d 1368, U.S.P.Q. 2d 1596 (Fed. Cir. 1998), cert. denied 119 S.Ct. 851 (1999)) in which the Federal Circuit adopted the view that "business methods" were not statutorily excluded from patentable subject matter. The genesis of the prohibition on business method patents is commonly said to have arisen in Hotel Security Checking Co. v. Lorraine Co., a 1908 case containing dicta saying "[n]o mere abstraction, no idea, however brilliant, can be the subject of a patent irrespective of the means designed to give it effect."68 This was, according to the Hotel Security court, because a "system of transacting business disconnected from the means of carrying out the system is not, within the most liberal interpretation of the term, an art." However, as the Federal Circuit noted in State Street, the decision in Hotel Security did not rely on the "business method exception" to render the patent invalid. Hotel Security nevertheless became the source of judicial statements that business methods were not patentable subject matter, eventually resulting in the PTO's adoption of a policy against granting business method patents. The exclusion of business methods from patentable subject matter was only half of the mid-twentieth century legal obstacles to business method patents. The "Mathematical Algorithm Exception" served for much of the century to place equally
difficult obstacles to patenting such inventions. Based upon the principle that patents cannot extend to "mere abstract ideas" the mathematical algorithm exception operated to preclude patents involving a sequence of definable steps, such as are typically carried out by software. Since many, if not most, modern developments in business methods involve use of computers, the mathematical algorithm exception gave courts additional ammunition to reject patents on commercial activity.

The restraints on algorithm patents began to loosen with Diamond v. Diehr (450 US 175 (1981)) in which the Supreme Court reiterated the prohibition against patents on mathematical algorithms so long as the represent mere abstract ideas, but eviscerated that restriction by agreeing algorithms are patentable when they produce a tangible result. With the decision in State Street, the Federal Circuit removed all doubt as to the patentability of software systems conducting financial activity. Under State Street, the analysis now focuses on "the essential characteristics of the subject matter, in particular, its practical utility." Methods and systems having such practical utility are patentable subject mater assuming exclusivity can be practically enforced.

 

Drafting Software Patents

Software patents are much like business method patents in regard to drafting the specification and claims for scope and infringement targets. Satisfying enablement and best mode requires some additional considerations, however. For enablement and best mode, a patent author should always include at least one or more flow diagrams for the software claimed, and probably several more software specific diagrams (data flow diagrams, structure charts, thread
diagrams, or object diagrams). However, in the worst case, courts have found that flow charts and/or source code listings are not always a requirement for adequately disclosing the functions of software. Most likely, only in exceptional circumstances would the author include source code.

Actually, for one software patent that held up under court scrutiny(See US Patent Number 4,871,966), it included no flow diagrams, source code listings, data flow diagrams, structure charts, or thread diagrams. The terms “software,” “computer program,” “routine,” “module,” “procedure,” and “function” are not found in the entire patent. The specification does include a mathematical description of how to obtain, in the course of a single scan, image data for several differently oriented planes in an object, but the discussion is entirely mathematical and theoretical. The specification gives several equations for certain signals. Of course, anyone skilled in the art could write a computer program to calculate an output for these equations given the inputs. However, the specification discloses only limited practical aspects of implementing the invention (without flow diagrams, source code listings, data flow diagrams, structure charts, or thread diagrams). The patent provided a textual description of its functions. Because adequate disclosure of the functions of the ‘chip’ was in the specification, failure to specifically identify a particular manufacturer’s ‘chip’ was not fatal to satisfaction of the best mode requirement.

It should be noted that software, Internet, and business method patents are uniquely vulnerable to import exclusion loop holes like no other type of subject matter. For example, courts have recently concluded (see NTP Inc. v. Research in Motion, Ltd., 418 E3d 1282 (Fed. Cir. 2005)) that data and information in the emails - the end result of the process -are not "products." Therefore, product import exclusion law (§ 217(g)) was not applicable, because the process accused of infringement did not produce any physical product. The main lessons to be learned from NTP are (1) use apparatus claims, (2) method claims are not subject to §§ 271(a) or (f), unless all steps occur in the United States, and (3) method claims are not subject to § 271(g), unless they produce a product that is something other than data or information. Thus, the patent author should draft Claim apparatuses as well as methods such that all components or acts are in the US. NTP interpreted 35 U.S.C. § 271 in a way that deprives the inventor of a method of any remedy so long as one single step occurs outside the United States - even if the benefit of the method is in the United States, and even if the control of the method is exerted largely from the United States. This is the first and biggest lesson to be learned from NTP. Unless the outcome of NTP is changed, poorly written method claims are in jeopardy because it is so easy to place a server outside the United States to perform one or more steps of the invention. In those instances, the infringer is beyond the reach of your patent. Clearly, software, Internet, and business method patents require a significantly higher level of patent practitioner skill now, more than ever.


Examination of Software Patents

In terms of pendency, software/Internet/business method patents for many years have taken about five to six more months to prosecute than electronics patents in general. Pendency has risen about two months per year for the last six years, meaning that in recent years PTO management has failed to manage to have sufficient numbers of examiners available. Also for at least the last six years, while examiners have about ten percent more claims to process for software/Internet/business method patents as compared to electrical patents, it is taking examiners about twenty percent more time to process the software/Internet/business method patents.

Patent examiners rarely have a comprehensive knowledge of the specific technologies disclosed in the iPhone software Patent applications they examine. This is in large part due to the enormous number of micro-niches in the software field and the relatively limited number of examiners. Another reason is that patent examiners simply do not have enough time and library resources to do their jobs. As a consequence, patents are often allowed on inventions that appear to be trivial extensions of existing technologies. If any member of the public disagrees with a patent office's granting of a patent, they can challenge the validity of the patent once it issues. This is done by an reexamination in the US and an opposition proceeding in Europe. Other countries have similar proceedings. Currently about 5% of all issued patents in Europe are opposed. Of those, 1/3 are fully upheld, 1/3 are partially overturned, and 1/3 are fully overturned.

To help improve the chances of your software/Internet/business method patent being strong and defensable, it is very encouraged that a thoughout patent and non-patent novelty search be performed, and that the patent specification be drafted to clearly distinguish the invention from all pertinent prior art found.
Once your patent is pending in the patent examination process the software/Internet/business method is often shared with or sold to the public. It can take some time for the patent office to finally issue your patent. In that time, you run the risk of the public coming to believe that your iphone software app or service has become part of the public domain. To avoid this, it is often desirable to allow your iPhone app Software Patent application to be published 18 months after filing, so third parties are usually made aware of prospective patent rights well before any patent is granted. Granted patents may be very different from the published applications, so the published application may only serve as a guide to the final scope of protection.

Once examination begins, the claims will be evaluated for patentability. The claims define the property rights provided by a patent, and thus require careful scrutiny. The goal of claim analysis is to identify the boundaries of the protection sought by the applicant and to understand how the claims relate to and define what the applicant has indicated is the invention. USPTO personnel must first determine the scope of a claim by thoroughly analyzing the language of the claim before determining if the claim complies with each statutory requirement for patentability.


USPTO personnel will begin claim analysis by identifying and evaluating each claim limitation. For processes, the claim limitations will define steps or acts to be performed. For products, the claim limitations will define discrete physical structures or materials. Product claims are claims that are directed to either machines, manufactures or compositions of matter.


USPTO will then correlate each claim limitation to all portions of the disclosure that describe the claim limitation. This is to be done in all cases whether or not the claimed invention is defined using means or step plus function language. The correlation step will ensure that USPTO personnel correctly interpret each claim limitation.

The subject matter of a properly construed claim is defined by the terms that limit its scope. It is this subject matter that must be examined. As a general matter, the grammar and intended meaning of terms used in a claim will dictate whether the language limits the claim scope. Language that suggests or makes optional but does not require steps to be performed or does not limit a claim to a particular structure does not limit the scope of a claim.


Patentability and Validity of Software Inventions

In the beginning, United States courts treated software suspiciously: In the 1970s, the Supreme Court held that software was essentially mathematical formulae, not patentable under US law. However, in 1981, the Supreme Court decided in Diamond v. Diehr that an invention could not be denied a patent solely because its claims contained mathematical formulae.

Instead, the court required a look at the invention as a whole. Two exceptions remained in place: the mathematical algorithm exception and, arguably, the business method exception.

In State Street Bank & Trust Company v. Signature Financial Group the court found that the mathematical algorithm test misleading and determined that software and business methods should be examined like any other traditionally patentable subject matter. In 1999, the court concluded that algorithms are patentable because they limit a general-purpose computer to a specific purpose, performing functions pursuant to the software. This statement is narrower than State Street's broad holding that mathematical algorithms were patentable as long as their application produced a useful, concrete, and tangible result.

Courts have held that if a software process is not an abstract process but claims a "real world activity", then even if the idea underlying an invention may be considered to reside in a mathematical method, such a software claim is an abstract mathematical algorithm.

You should keep in mind that granted software/Internet/business method patents can be revoked if found to be invalid, so development of new ideas is therefore not blocked by bad patents. If members of the public feel that an examiner has allowed an overly general claim in a patent, they may file an interpartes examination in the US, an opposition in Europe, or a lawsuit in Court, to argue that claims are overly broad and should not be allowed. Thus, it is always a good idea to have a professional patent novelty search performed to help avoid this issue before filing. Despite the ever increasing volume of non-patent prior art, the average software/Internet/business method patent is citing only 1 to 2 non-patent prior art items, which is far too few. Worse yet, the vast majority of software patents (about 60%) still cite no non-patent prior art. Thus, to strengthen your software/Internet/business method patent it is strongly advisable to find at least 10 pertinent non-patent prior art reference to cite in your patent case and design around in the specification.

Some software patents are particularly subject to invalidity findings based on lack of enablement and/or utility. The first paragraph of 35 U.S.C. §112 requires an applicant to describe the claimed invention sufficiently to enable one skilled in the art to make and use the invention. 35 U.S.C. §101 requires that the invention have a useful purpose, or Utility. Problems can arise when one or both of these requirements are not met. In one situation, an applicant fails to disclose a credible utility in the specification (referred to below as the "no utility situation"). In the other situation, an applicant provides evidence to address doubts about a utility stated in the specification (referred to below as the "no evidence situation"). Each of these situations has a different consequence. The different consequences can be critical, especially in the context of an interference.
With regard to the "no utility situation," it is well settled that an application must disclose a utility as required in §101, and enable the utility as required in §112, as of the filing date. If a utility is not disclosed and enabled in the application as filed, the application is in violation of §101 and 112, and does not accord the benefit of its filing date to later continuing applications. With regard to the "no evidence" situation, it is equally well settled that an applicant may provide evidence after the filing date to further support a utility already set forth in the specification as filed, and still maintain the original filing date.

In practice, almost no patents in the US are challenged in an interpartes reexamination since it weakens an infringer's ability to defend themselves if they fail in the interpartes reexamination and are then sued for patent infringement. Moreover, because software/Internet/business patents, like all patents, are presumed valid there is a very high, often insurmountable, burden on competitors to work the patent process towards invalidating your patent. The costs of determining if a particular piece of software or business method infringes any issued software/Internet/business method patents is almost always too high and the results are too uncertain to be worth fighting.

Competitors (your potential licensees) usually find that spending time and money challenging software/Internet/business method patents is a waste of valuable resources and tend to license instead. Typically, they conclude that defending against the blocking patent requires that significant funds be diverted away from their research and development and is not worth fighting. This is in part due to the fact that patents can be obtained on relatively small incremental improvements in software. Thus a new innovative product might require hundreds of patents to protect and might in turn be covered, at least to some extent, by thousands of prior issued patents. Any one of these prior issued patents could prevent a new product from being made used or sold in the marketplace. As such, the small to mid sized player can leverage significant opportunity to license even a patent of limited scope to large entities that require that technology to roll out a new product or service.


Scope of Software Patents

There seems to be an increasing trend over the past several years for reading patents narrowly based on
patent specifications. Historically, courts had not really addressed the scope of a business method patent in light of potentially limiting language found in its patent specification. Those whom you assert your patent against will immediately be poring over your patent specification to locate limiting language, which remains a sound but tedious option when faced with a process patent infringement suit.

Thus, Patentees should take care to include in their patent specifications as many embodiments
and permutations of their claimed processes as possible, and do so with language that describes the claimed process with some specificity without reading too narrowly.

The Federal Circuit decides In re Bilski in 2008 - a landmark decision

In a 9-3 majority decision authored by Chief Judge Paul Michel, the Federal Circuit declared the machine-or-transformation test as the touchstone inquiry for determining patent-eligibility of process claims under 35 U.S.C. § 101 ("§ 101"). The court reaffirmed the patent-eligibility for both business methods and software and carefully avoided overruling its own precedent estab lished in the State Street Bank' and AT&T4 cases. The majority decision also clarifies other areas of uncertainty by affirmatively rejecting alternative § 101 tests. The Patent Office rejected a petition from applicants Bernard Bilski and Rand Warsaw because it decided that the process described was not confined to a particular machine and amounted to patenting a "mental Leap" or an "abstract idea".


The invention at the heart of the Bilski appeal is a financial method for hedging consumption risk for commodities sold at fixed prices. While the invention could be implemented using a machine such as a computer, the claims are not so limited.

The Board of Patent Appeals and Interferences ("BPAI") found Bilski's claim unpatentable as failing to recite statutory subject matter under three distinct § 101 tests including (1) the "transformation" test, (2) the "abstraction" test and (3) the "useful, concrete, and tangible result" test. Bilski appealed the decision to the Federal Circuit who initially heard oral arguments on October 1, 2007. Soon thereafter, the Federal Circuit sua sponte ordered a rehearing on May 8, 2008 before an en banc court.

In Bilski, the Federal Circuit endeavored to realign its § 101 jurisprudence with Supreme Court precedent. Both the Supreme Court and the Federal Circuit have long recognized that "fundamental principles" such as laws of nature, natural phenomena, or abstract ideas are not patentable. However, the majority struggled to otherwise identify a unifying test common throughout the Benson, Flook, and Diehr trilogy. Upon synthesizing the case law, the Federal Circuit pronounced the machine -or-transformation test as the "definitive test to determine whether a process claim is tailored narrowly enough to encompass only a particular application of a fundamental principle rather than to pre-empt the principle itself."'

According to the machine-or-transfor mation test, a process claim is patent eligible subject matter if: (1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing. Thus, the question before the Federal Circuit was whether Bilski's "claim recites a fundamental principle and if so, whether the claim would preempt substantially all uses of the fundamental principle if allowed."

Applying the two pronged machine - or-transformation test to the Bilski facts, the court immediately disregarded the "machine" inquiry as not being ripe for discussion given the absence of machine limitations in Bilski's claims. Therefore, under current law, software is patentable subject matter in the USA so long at is executed on a machine (e.g., a computer) or stored on a computer readable medium.

 

 

Types of Utility iPhone software Patent applications

Patent offices may define a number of types of applications, each offering different benefits and being useful in different situations. Each office utilises different names for the types of applications, but the general groups are detailed below. Within each group there are specific type of applications, such as utility patents to patent your iphone software app, plant patents, and design patents, each of which can have their own substantive and procedural rules.

Standard application

A standard patent application is a Software Patent application to patent your iphone software app containing all of the necessary parts (e.g. a written description of the invention and claims) that are required for the grant of a patent. A standard patent may or may not result in the grant of a patent depending upon the outcome of an examination by the patent office it is filed in. In the U.S., a standard patent application to patent your iphone software app is referred to as a "non-provisional" application.

Provisional applications

Provisional patent applications can be filed at many patent offices, including the US Patent Office (USPTO). A provisional patent application to patent your iphone software app provides an opportunity to place an application on file to obtain a filing date (thereby securing a priority date), but without the expense and complexity of a standard patent application to patent your iphone software app. The disclosure in a provisional application may, within a limited time (one year in the U.S.), be incorporated into a standard patent application to patent your iphone software app if a patent is to be pursued. Otherwise, the provisional application expires. No enforceable rights can be obtained solely through the filing of a provisional application.

Continuation applications

In certain offices a patent application to patent your iphone software app can be filed as a continuation of a previous application. Such an application is a convenient method of including material from a previous application in a new application when the priority year has expired and further refinement is needed. Various types of continuation application are possible, such as continuation and continuation-in-part.

Divisional applications

A divisional application is one which has been "divided" from an existing application. A divisional application can only contain subject matter in the application from which it is divided (its parent), but retains the filing and priority date of that parent. A divisional application is useful if a restriction objection is issued, in which case the second (and third, fourth, etc) inventions can be protected in divisional applications.

 

 

Background of the Invention

This section should include a statement of the field of endeavor to which the invention pertains. This section may also include a paraphrasing of the applicable US patent Classification Definitions or the subject matter of the claimed invention. In the past, this part of this section may have been titled "Field of Invention" or "Technical Field."

This section should also contain a description of information known to you, including references to specific documents, which are related to your invention. It should contain, if applicable, references to specific problems involved in the prior art (or state of technology) which your invention is drawn toward. In the past, this section may have been titled "Description of the Related Art" or "Description of Prior Art."

Brief Summary of the Invention

This section should present the substance or general idea of the claimed invention in summarized form. The summary may point out the advantages of the invention and how it solves previously existing problems, preferably those problems identified in the BACKGROUND OF THE INVENTION. A statement of the object of the invention may also be included.

Brief Description of the Several Views of the Drawing

Where there are drawings, you must include a listing of all figures by number (e.g., Figure 1A) and with corresponding statements explaining what each figure depicts.

Detailed Description of the Invention

In this section, the invention must be explained along with the process of making and using the invention in full, clear, concise, and exact terms. This section should distinguish the invention from other inventions and from what is old and describe completely the process, machine, manufacture, composition of matter, or improvement invented. In the case of an improvement, the description should be confined to the specific improvement and to the parts that necessarily cooperate with it or which are necessary to completely understand the invention.

It is required that the description be sufficient so that any person of ordinary skill in the pertinent art, science, or area could make and use the invention without extensive experimentation. The best mode contemplated by you of carrying out your invention must be set forth in the description. Each element in the drawings should be mentioned in the description. This section has often, in the past, been titled "Description of the Preferred Embodiment."

Claim or Claims

The claim or claims must particularly point out and distinctly claim the subject matter which you regard as the invention. The claims define the scope of the protection of the patent. Whether a patent will be granted is determined, in large measure, by the choice of wording of the claims.

A nonprovisional application for a utility patent must contain at least one claim. The claim or claims section must begin on a separate sheet. If there are several claims, they shall be numbered consecutively in Arabic numerals, with the least restrictive claim presented as claim number 1.

The claims section must begin with a statement such as "What I claim as my invention is: . . ." or "I (We) claim: . . ." followed by the recitation of the particular matter which you regard as your invention.

One or more claims may be presented in dependent form, referring back to and further limiting another claim or claims in the same application. All dependent claims should be grouped together with the claim or claims to which they refer to the extent practicable. Any dependent claim that refers to more than one other claim ("a multiple dependent claim") shall refer to such other claims in the alternative only. Each claim should be a single sentence, and where a claim sets forth a number of elements or steps, each element or step of the claim should be separated by a line indentation.

The fee required to be submitted with a nonprovisional utility patent application to patent your iphone software app is, in part, determined by the number of claims, independent claims, and dependent claims.

Each element in an independent claim (i.e., a claim that does not refer to another claim) does not have to be novel, but at least one claim element (i.e., clause or limitation), must be novel. Generally, claim limitations that are not novel should be included if it is technically accurate and necessary to carry out the required function/structure of at least the most basic application of the invention. Novelty is evaluated by considering all limitations within a given claim together. It is common to name elements/functions in a claim that are not novel, but are necessary to describe how the novel aspects of your invention cooperate with the known elements.

Each element in a dependent claim (i.e., a claim that does refer to another claim) does not have to be novel, and should be included if it is technically accurate and a commercially viable function/structure/instance that is either novel or, if not novel, that a competitor might carry out in combination with the root claims. Novelty is evaluated by evaluation of the independent claim limitations together with the dependent claim limitations.

Abstract of the Disclosure

The purpose of the abstract is to enable the USPTO and the public to determine quickly the nature of the technical disclosures of your invention. The abstract points out what is new in the art to which your invention pertains. It should be in narrative form and generally limited to a single paragraph, and it must begin on a separate page. An abstract should not be longer than 150 words.

Information Disclosure Statement 

The USPTO requires the filing of an Information Disclosure Statement (IDS) with copies of all relevant publications (patents or otherwise) known to the inventor. The IDS is usually filed after receiving the official filing receipt from the USPTO, about three months after filing the application.  Attorneys generally charge an IDS preparation fee, and there might be additional fees from document suppliers, if you cannot supply a copy of a reference and your practitioner needs to procure it elsewhere.  It is usually recommended that you provide your practitioner with copies of all publications you know about before they file your application (ideally, before the first draft is prepared). Note that if you become aware of any references which are relevant to patentability during the pendency of the patent, for example if a foreign patent office cites patents against a foreign counterpart of the US application, a Supplemental IDS should be filed with the references.

Prosecution Related Issues

There are many actions that occur during the prosecution of a patent application to patent your iphone software app that can significantly affect the resulting patent after being granted.  Many of these issues show up during patent infringement litigation in the courts.  What follows, is a highlight of some of these pertinent issues.

A skilled patent drafter should attempt to foresee the limiting potential of a claim limitation. Sometimes subtlety of language or complexity of the technology, or any subsequent change in the state of the art, such as later-developed technology, may, however, obfuscated the significance of this limitation at the time of its incorporation into the claim. There is an opportunity to broaden patent protection by seeking claims with fewer structural encumbrances or method steps. If the claims are drawn too narrow, then patent scope may not be recovered by what is known as the doctrine of equivalents. The patentee has an opportunity to negotiate broader claims up to two years after patent issuance, where afterwards, it is the patentee who must bear the cost of its failure to seek protection for any foreseeable alteration of its claimed structures or steps.

The claims define the scope of protection for a patent afforded to the actual inventor. Patent law requires the applicant to swear, or affirm, that he believes himself to be the true inventor of the art, machine, or improvement, for which he asks for a patent; and further that he shall deliver a written description of his invention, in such full, clear, and exact terms, that any person, acquainted with the art, may know how to construct and use the same. The reason for this is to guard the public against unintentional infringements of the patent, and to enable the public to make an improvement that does not infringe your patent. When an accused device possess every limitation of a claim in your patent, then that device or process has comitted literal infringement of your patent. However, the language in the patent claims may not capture every nuance of the invention or describe with complete precision the range of its novelty. If patents were always interpreted by their literal terms, their value would be greatly diminished. Unimportant and insubstantial substitutes for certain elements could defeat the patent, and its value to inventors could be destroyed by simple acts of copying. For this reason, the clearest rule of patent interpretation, literalism, may conserve judicial resources but is not necessarily the most efficient rule. The scope of a patent is not limited to its literal terms but instead embraces all equivalents to the claims described. In this way, a balance between the two competing policies behind the enforcement of patent rights: (1) to protect the inventor’s right to exclude others who might steal the product of his work by making equivalent modifications, and (2) to provide clear notice to the public of the invention’s boundaries.

In generic terms: in determining the patentably of your your invention, the Patent Office must consider utilitynoveltyobviousness, and so called "secondary considerations." Generally, if your iphone software app or process does something useful that a "close" one does not, then your iphone software app would logically be novel. You must then question if the additional features or functions that you are claiming as novel would have been obvious to do for an average person skilled in the field of your invention. If the novelty is clearly not obvious to an average skilled artisan, then your invention would very likely be patentable, all other things being equal. If your invention's novelty is questionably obvious, then the fallback argument, although some what weaker, is to set forth any secondary consideration that relate to the commercial viability of your iphone software app over the others in question. For the more complicated case where your invention is questionably obvious, read on...

Patent law is designed to serve the small inventor as well as the giant research organization. One fact to keep in mind is that most, if not all, inventions are combinations and mostly of old elements. Therefore an examiner may often find every element of a claimed invention in the prior art. If identification of each claimed element in the prior art were sufficient to reject patentability of your invention, then very few patents would ever issue. Patent examiners are not allowed to reject patents solely by finding your claimed elements in the prior art. If that were allowed it would permit an examiner to use the claimed invention itself as a blueprint for piecing together elements in the prior art to defeat the patentability of patents. The courts have said such an approach would be an illogical and inappropriate process by which to determine patentability.

You should also be aware that it is not a requirement of patentability that an inventor correctly set forth, or even know, how or why the invention works.

Generally, the claimed invention must be considered as a whole, and the question is whether there is something in the prior art as a whole to suggest the desirability, and thus the obviousness, of making the combination. When determining the patentability of a claimed invention which combines two known elements, the question is whether there is something in the prior art as a whole to suggest the desirability, and thus the obviousness, of making the combination.

To prevent the use of hindsight based on the invention (i.e., viewing the prior-art in terms of what your invention or the art after your filing date teaches) to defeat patentability of the invention, courts require the examiner to show a motivation to combine the references that create the case of obviousness. In other words, the examiner must show reasons that the skilled artisan, confronted with the same problems as the inventor and with no knowledge of the claimed invention, would select the elements from the cited prior art references for combination in the manner claimed.

Courts have identified three possible sources for a motivation to combine references: the nature of the problem to be solved, the teachings of the prior art, and the knowledge of persons of ordinary skill in the art. It is not allowed for the examiner to just rely on the high level of skill in the art to overcome the differences between the claimed invention and the selected elements in the references, and provide the necessary motivation.

Instead, the examiner, if rejecting your claim based on obviousness, must explain what specific understanding or technological principle within the knowledge of one of ordinary skill in the art would have suggested the combination. Otherwise, if a rote piecing together of prior-art elements could suffice to supply a motivation to combine, the more sophisticated scientific fields would rarely, if ever, experience a patentable technical advance. That is, for example, in complex scientific fields, the examiner could routinely identify the prior art elements in an application, invoke the lofty level of skill, and rest its case for rejection. To counter this potential weakness in the obviousness construct, the suggestion to combine requirement stands as a critical safeguard against hindsight analysis and rote application of the legal test for obviousness.

Obviousness is ultimately a question of law that rests on underlying factual inquiries including: (1) the scope and content of the prior art; (2) the level of ordinary skill in the art; (3) the differences between the claimed invention and the prior art; and (4) objective considerations of nonobviousness. Objective considerations such as failure by others to solve the problem and copying may often be the strongest evidence of nonobviousness.

This objective evidence of nonobviousness includes so-called "secondary considerations" such as copying, long felt but unsolved need, failure of others, commercial success, unexpected results created by the claimed invention, unexpected properties of the claimed invention, licenses showing industry respect for the invention, and skepticism of skilled artisans before the invention

The so-called "secondary considerations" provide evidence of how the patented device is viewed by the interested public: not the inventor, but persons concerned with the product in the objective arena of the marketplace.

Prosecution History Estoppels

Traditionally, the doctrine of prosecution history estoppels has been defined as an equitable tool for determining the scope of patent claims. The doctrine bars the patentee from construing its claims in a way that would resurrect subject matter previously surrendered during prosecution of the patent application to patent your iphone software app, and thus prevents a patentee from enforcing its claims against otherwise legally equivalent structures if those structures were excluded by claim limitations added to avoid prior art. The traditional view that depending upon the nature and purpose of an amendment, the doctrine may have a limiting effect within a spectrum ranging from great to small to zero was recently changed by the federal circuit.  Accordingly, all amendments made for the purpose of patentability are now deemed to have the effect of depriving the inventor of a claim interpretation that includes equivalent structures.

Generally, an amendment that narrows the scope of a claim for any reason related to the statutory requirements of a patent will give rise to prosecution history estoppel with respect to the amended claim element. That is, while the patentee has the right to appeal, his decision to forgo an appeal and submit an amended claim is taken as a concession that the invention as patented does not reach as far as the original claim. That is, where the original application once embraced the purported equivalent but the patentee narrowed his claims to obtain the patent or to protect its validity, the patentee cannot assert that he lacked the words to describe the subject matter in question. The doctrine of equivalents is premised on language's inability to capture the innovation, but a prior application describing the precise element at issue undercuts that premise. In that instance the prosecution history has established that the inventor turned his attention to the subject matter in question, knew the words for both the broader and narrower claim, and affirmatively chose the latter.

Estoppel general arises when an amendment is made to secure the patent and the amendment narrows the patent's scope. If a §112 amendment is truly cosmetic, then it would not narrow the patent's scope or raise an estoppel. On the other hand, if a §112 amendment is necessary and narrows the patent's scope -- even if only for the purpose of better description - estoppel may apply. A patentee who narrows a claim as a condition for obtaining a patent disavows his claim to the broader subject matter, whether the amendment was made to avoid the prior art or to comply with §112. The courts regard the patentee as having conceded an inability to claim the broader subject matter or at least as having abandoned his right to appeal a rejection. In either case estoppel may apply, especially when the patentee is unable to explain the reason for amendment, estoppel not only applies but also bars the application of the doctrine of equivalents as to that element. Case law makes clear that the patentee should bear the burden of showing that the amendment does not surrender the particular equivalent in question, and that the patentee, as the author of the claim language, may be expected to draft claims encompassing readily known equivalents. Hence, a patentee's decision to narrow his claims through amendment may be presumed to be a general disclaimer of the territory between the original claim and the amended claim.

By amending the application, the inventor is deemed to concede that the patent does not extend as far as the original claim. It does not follow, however, that the amended claim becomes so perfect in its description that no one could devise an equivalent. After amendment, as before, language remains an imperfect fit for invention. The narrowing amendment may demonstrate what the claim is not; but it may still fail to capture precisely what the claim is. Case law makes clear, however, that there is no reason why a narrowing amendment should be deemed to relinquish equivalents unforeseeable at the time of the amendment and beyond a fair interpretation of what was surrendered. Nor is there any call to foreclose claims of equivalence for aspects of the invention that have only a peripheral relation to the reason the amendment was submitted, or if there was some other reason suggesting that the patentee could not reasonably be expected to have described the insubstantial substitute in question. In such cases the patentee can overcome the presumption that prosecution history estoppel bars a finding of equivalence.

Canceling claims and replacing with narrower versions may create estoppel as well. For example, consider the case where certain rejected claims were never amended, but instead canceled and replaced with claims containing a more narrow scope, which are later issued with a patent. In this example, the courts will not discern any legally significant difference between canceling a claim having a broad limitation and replacing it with a claim having a narrower limitation, and amending a claim to narrow a limitation, since to do so "would place form over substance and would undermine the rules governing prosecution history estoppel laid out in Festo by allowing patent applicants simply to cancel and replace claims for reasons of patentability rather than to amend them". Thus, canceling and replacing claims is considered analogous to amending them.

The presumption prosecution history estoppel is not just a complete bar by another name. Rather, it reflects the fact that the interpretation of the patent must begin with its literal claims, and the prosecution history is relevant to construing those claims. When the patentee has chosen to narrow a claim, courts may presume the amended text was composed with awareness of this rule and that the territory surrendered is not an equivalent of the territory claimed. In those instances, however, the patentee still might rebut the presumption that estoppel bars a claim of equivalence. The patentee must show that at the time of the amendment one skilled in the art could not reasonably be expected to have drafted a claim that would have literally encompassed the alleged equivalent.

The courts reason that explicit arguments made during prosecution to overcome prior art can lead to narrow claim interpretations makes sense, because the public has a right to rely on such definitive statements made during prosecution as public notice, which is regarded as an important function of the patent prosecution process. By distinguishing the claimed invention over the prior art, an applicant is explicitly indicating what the claims do not cover. Therefore, a patentee, after relinquishing subject matter to distinguish a prior art reference asserted by the PTO during prosecution, cannot during subsequent litigation escape reliance by the defendant upon this unambiguous surrender of subject matter. Accordingly, claims may not be construed one way in order to obtain their allowance and in a different way against accused infringers.

For information on infringement of a patent, click on one of the following topics:

 

 

Intellectual Property Information

What Are Patents, Trademarks, Servicemarks, and Copyrights?
What Is a Patent?
Information regarding your best approach to Patent protection
What Is a Trademark or Servicemark?
What Is a Copyright?

 

A Comparison of Various Types of Intellectual Property

 

Trade Secret

Copyright

Trademark

Design Patent

Utility Patent

What is protected?

Know-how

Original expression of an idea

Customer's notion of your good or service's source.

Visible appearance

Products, processes, compositions, functions

Typical things protected how to make Coca-cola, hidden high-tech methods, & etc. written material: computer programs, books, plays, poems; art: sculptures, paintings, photographs, etc. names, logos, internet domain names, designs, & etc. unique shape/styling of articles like product packaging, figurines, etc. tools, devices, machines, computer programs, games, processes, formulas, internet, electronic, chemical and business methods etc.

What are others prohibited from doing?

Unauthorized use or dissemination by someone who has been let in on the secret.

Copying the expression

Confusing the consumer.

Making something looking the same or similar..

Using the claimed invention.

How is the right established?

Use in trade

Authorship

Use in trade

Examination

Examination

What is needed to get protection?

Know-how must be well defined, not publicly known, and protected.

Tangible use of the expression. 

Mark must distinctive, and not confusingly similar to another.

Visible appearance must be new and not obvious.

Invention must be new, useful and not obvious, and you must teach how to make and use it.

Geographic coverage country of origin or by other countries by treaty Worldwide Country filed in Country filed in Country filed in, or worldwide if PCT filing

What is the duration of protection?

Until disclosed to the public.

life of author plus 50 years

10 years, or as long as it is in use.

14 years (US) from grant

At most 20 years from filing.

 

What Are Patents, Trademarks, Servicemarks, and Copyrights?

The difference between patents, copyrights, and trademarks can be confusing sometimes.  Although there may be some similarities among these kinds of intellectual property (IP) protection, they are different and serve very different purposes.

What Is a Patent?

A patent for an invention is the grant of a property right to the inventor, issued by the Patent and Trademark Office. The term of a new patent is 20 years from the date on which the application for the patent was filed in the United States or, in special cases, from the date an earlier related application was filed, subject to the payment of maintenance fees. US patent grants are effective only within the US, US territories, and US possessions.

The right conferred by the patent grant is, in the language of the statute and of the grant itself, "the right to exclude others from making, using, offering for sale, or selling" the invention in the United States or "importing" the invention into the United States. What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention.

What Is a Trademark or Servicemark?

A trademark is a word, name, symbol or device which is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others. A servicemark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. The terms "trademark" and "mark" are commonly used to refer to both trademarks and servicemarks.

Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark. Trademarks which are used in interstate or foreign commerce may be registered with the Patent and Trademark Office. The registration procedure for trademarks and general information concerning trademarks is described in a separate pamphlet entitled "Basic Facts about Trademarks".

What Is a Copyright?

Copyright is a form of protection provided to the authors of "original works of authorship" including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished. The 1976 Copyright Act generally gives the owner of copyright the exclusive right to reproduce the copyrighted work, to prepare derivative works, to distribute copies or phono records of the copyrighted work, to perform the copyrighted work publicly, or to display the copyrighted work publicly.

The copyright protects the form of expression rather than the subject matter of the writing. For example, a description of a machine could be copyrighted, but this would only prevent others from copying the description; it would not prevent others from writing a description of their own or from making and using the machine. Copyrights are registered by the Copyright Office of the Library of Congress.

What Is a Patent Attorney?

In the United States, a practitioner may either be a patent attorney or patent agent. Both patent attorneys and patent agents have the same license to practice and represent clients before the US Patent Office, part of the United States Patent and Trademark Office (USPTO). Both patent agents and patent attorneys may prepare, file, and prosecute iPhone software Patent applications. Patent agents and patent attorneys may also provide patentability opinions, as noted by the U.S. Supreme Court in Sperry v. Florida. The only areas were patent agents do not practice are in litigation and trademark related work. The United States Patent and Trademark Office Rules of Ethics and Professionalism, effective as of September 15, 2008, specifically clarifies that patent agents may not provide an "opinion of validity of another party's patent when the client is contemplating litigation and not seeking reexamination" because such activity "could not be reasonably necessary and incident to the preparation and prosecution" of a client's patent.

Nearly all inventors employ the services of registered patent attorneys or patent agents to prepare and file their iPhone app Software Patent application. Patent attorneys must also be admitted to the practice of law in at least one state or territory of the U.S. The law gives the Patent and Trademark Office the power to make rules and regulations governing conduct and the recognition of patent attorneys and agents to practice before the Patent and Trademark Office. Persons who are not recognized by the Patent and Trademark Office for this practice are not permitted by law to represent inventors before the Patent and Trademark Office. The Patent and Trademark Office maintains a register of attorneys and agents. To be admitted to this register, a person must comply with the regulations prescribed by the Office, which require a showing that the person is of good moral character and of good repute and that he/she has the legal, and scientific and technical qualifications necessary to render applicants for patents a valuable service. Certain of these qualifications must be demonstrated by the passing of an examination. Those admitted to the examination must have a college degree in engineering or physical science or the equivalent of such a degree.

The Patent and Trademark Office registers both attorneys at law and persons who are not attorneys at law. The former persons are now referred to as “patent attorneys” and the latter persons are referred to as “patent agents.” Insofar as the work of preparing an application for a patent and conducting the prosecution in the Patent and Trademark Office is concerned, patent agents are usually just as well qualified as patent attorneys, although patent agents cannot conduct patent litigation in the courts or perform various services which the local jurisdiction considers as practicing law. For example, a patent agent could not draw up a contract relating to a patent, such as an assignment or a license, if the state in which he/she resides considers drafting contracts as practicing law.

Both Patent Attorneys and Patent Agents are required to have a technical degree (such as engineering, chemistry or physics) and must take and pass the United States Patent and Trademark Office registration examination (officially titled Examination for Registration to Practice in Patent Cases Before the United States Patent and Trademark Office). Since patent attorneys are admitted to practice law in a state or territory, they can additionally provide legal services outside the Patent Office if practicing within the jurisdiction they are admitted to practice or if the law of the jurisdiction otherwise permits them to practice although not admitted in that jurisdiction. These legal services include advising a client on matters relating to the licensing of the invention; whether to appeal a decision by the Patent Office to a court; whether to sue for infringement; whether someone is infringing upon the claims of a client's issued patent; and conversely, whether a client is infringing the claims of someone else's issued patent. Patent agents cannot provide legal services of this nature, nor can they represent clients before the Trademark Office part of the USPTO.

To register as a patent agent or patent attorney, one must pass the United States Patent and Trademark Office registration examination. This exam, commonly referred to as the "patent bar," is extremely difficult to pass- having a typical failure rate of about 80% over the past 10 years. The patent bar exam tests a candidate's knowledge of patent law and United States Patent and Trademark Office policies and procedures as set forth in the Manual of Patent Examining Procedure (MPEP). Upon successful completion of the examination, one will be labeled as a "patent attorney" if he/she has already been admitted to a state or territorial bar. However, engineers, scientists and any other science based majors, as well as law students and law graduates who are not admitted to a bar, will be labeled as "patent agents" since they cannot represent clients in a court of law (e.g., in a infringement litigation case). Applicants who are not United States citizens and do not reside in the U.S. are not eligible for registration except as permitted by 37 CFR § 11.6(c). None of the world's countries, except Canada reciprocates, giving U.S. citizens the right that the U.S. grants to their citizens

A candidate patent agent or attorney must also have an adequate scientific and technical background or education to understand a client's invention. The educational requirement can be met by a bachelor's degree in a specifically enumerated major, such as biology, computer science, chemistry, biochemistry, microbiology, physics, and biomedical, chemical, civil, electrical or mechanical engineering. Degrees in the social sciences, mathematics, or philosophy by themselves do not meet this requirement.

A patent attorney or patent agent candidate must also possess "good moral character and reputation" (37 CFR 11.7). If practicing outside the United States, a patent agent or patent attorney must be a U.S. citizen.

The preparation of an application for patent and the conducting of the proceedings in the Patent and Trademark Office to obtain the patent is an undertaking requiring the knowledge of patent law and rules and Patent and Trademark Office practice and procedures, as well as knowledge of the scientific or technical matters involved in the particular invention.

While the US Patent Office allows inventors to prepare their own applications and file them in the Patent and Trademark Office and conduct the proceedings themselves, without sophisticated legal training, they may get into considerable difficulty and the result is often an unenforceable or invalid patent.

You should be careful in choosing who does your iphone software app Patent application because some individuals and organizations that are not registered to do patent work advertise their services in the fields of patent searching and invention marketing and development. Such individuals and organizations cannot represent inventors before the Patent and Trademark Office. They are not subject to Patent and Trademark Office discipline, and the Patent Office does not assist inventors in dealing with them.

The Patent and Trademark Office does not recommend any particular attorney or agent, or aid in the selection of an attorney or agent, as by stating, in response to inquiry that a named patent attorney, agent, or firm, is “reliable” or “capable.” The Patent and Trademark Office publishes a directory of all registered patent attorneys and agents who have indicated their availability to accept new clients, arranged by states, cities, and foreign countries. The Directory is also available on the PTO Web site.

In employing a patent attorney or agent, the inventor executes a power of attorney or authorization of agent which must be filed in the Patent and Trademark Office and is usually a part of the application papers. When an attorney or agent has been appointed, the Office does not communicate with the inventor directly but conducts the correspondence with the attorney or agent since he/she is acting for the inventor thereafter although the inventor is free to contact the Patent and Trademark Office concerning the status of his/her application. The inventor may remove the attorney or agent by revoking the power of attorney or authorization of agent.

Generally, the Patent and Trademark Office has the power to disbar, or suspend from practicing before it, persons guilty of gross misconduct, etc., but this can only be done after a full hearing with the presentation of clear and convincing evidence concerning the misconduct. The Patent and Trademark Office will receive and, in appropriate cases, act upon complaints against attorneys and agents.

 

Patent Attorney and Patent Agent-client confidentiality

All registered patent practitioners are bound by the duty to preserve privileged information in confidence.  This duty is an ethical "Cannon," or pillar, of conduct under penalty of strict disciplinary rules.  The relevant sections of Title 37 - Code of Federal Regulations Patents (Aug. 2001) are cited below for you review. 

§ 10.20 Canons and Disciplinary Rules.

(a) Canons are set out in §§ 10.21, 10.30, 10.46, 10.56, 10.61, 10.76, 10.83, 10.100, and 10.110. Canons are statements of axiomatic norms, expressing in general terms the standards of professional conduct expected of practitioners in their relationships with the public, with the legal system, and with the legal profession.

(b) Disciplinary Rules are set out in §§ 10.22- 10.24, 10.31-10.40, 10.47-10.57, 10.62-10.68, 10.77, 10.78, 10.84, 10.85, 10.87-10.89, 10.92, 10.93, 10.101-10.103, 10.111, and 10.112. Disciplinary Rules are mandatory in character and state the minimum level of conduct below which no practitioner can fall without being subjected to disciplinary action. 

§ 10.56 Canon 4.

A practitioner should preserve the confidences and secrets of a client. 

§ 10.57 Preservation of confidences and secrets of

a client.

(a) "Confidence" refers to information protected by the attorney-client or agent-client privilege under applicable law. "Secret" refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.

(b) Except when permitted under paragraph (c) of this section, a practitioner shall not knowingly:

(1) Reveal a confidence or secret of a client.

(2) Use a confidence or secret of a client to the disadvantage of the client.

(3) Use a confidence or secret of a client for the advantage of the practitioner or of a third person, unless the client consents after full disclosure.

(c) A practitioner may reveal:

(1) Confidences or secrets with the consent of the client affected but only after a full disclosure to the client.

(2) Confidences or secrets when permitted under Disciplinary Rules or required by law or court order.

(3) The intention of a client to commit a crime and the information necessary to prevent the crime.

(4) Confidences or secrets necessary to establish or collect the practitioner's fee or to defend the practitioner or the practitioner's employees or associates against an accusation of wrongful conduct.

(d) A practitioner shall exercise reasonable care to prevent the practitioner's employees, associates, and others whose services are utilized by the practitioner from disclosing or using confidences or secrets of a client, except that a practitioner may reveal the information allowed by paragraph (c) of this section through an employee.

Patent Attorney or a Patent Agent, which is right for me?

also see: USPTO Patent Attorneys and Patent Agents

We are agnostic between Patent Agents and Attorneys, because we employ both.  First of all, it is helpful to understand the main differences between a Patent Attorney and a Patent Agent. From the USPTO's point of view, both have to passed the Patent Bar Exam and if the person is a licensed Attorney in some US State, then she is a Patent Attorney, otherwise a Patent Agent. The Patent Bar Exam is mostly taken by Attorneys, and is extremely difficult to pass. It usually takes two to three tries for most to pass (i.e., pass rates range from 15-35%). Anyone that can pass this grueling exam is licensed to practice in all matters related to patents before the USPTO. Interestingly, there is nothing taught in law school about Patent Practice that would help a law student at all to pass the Patent Bar Exam or to prepare and prosecute iPhone iPhone app Software Patent applications. In this respect, there is little advantage to  a Patent Attorney. The main factor that you should consider concerns your practitioner's technical and legal expertise. That is, generally, the more technically knowledgeable your practitioner is, the more accurate your patent will be, and the less time it will take to have him or her understand your invention. In this regard, Patent Agents tend to be far more technically capable than Patent Attorneys. The main reason is because Agents tend to come from a career in industry, and Attorneys tend to come right out of law school no practical technical experience. The final main difference to consider, is that, for reasons beyond the scope of this brief presentation, we, and most patent firms, bill out Patent Attorneys at least twice as much as a Patent Agents.

Regarding which is right for you, the only cases where only a Patent Attorney is an option is if you require patent litigation, patent validity opinion, patent licensing, or trademark application services. Although, few Patent Attorneys have much experience in these areas, the litigation and patent validity opinion experience, if supported by solid patent prosecution experience (a very rare combination), can be helpful in drafting very high value iPhone App patent applications (e.g., worth $100's of millions like Yahoo!, Amazon one-click, etc.). Even if your patent may not turn out to be the next Amazon, you should still find an affordable practitioner with some experience in patent validity opinion work, as this will usually increase the likelihood that your patent will hold up well in court. That is why it is particularly important to be sure that the practitioner you are considering has worked in an important Patent Law Firm (and not only inside a company), and has worked with validity opinions. It is our experience that, all other things being equal, it is almost always a better over-all value for a small business or independent inventor to work with a Patent Agent over a Patent Attorney as it usually costs half as much for the same work.  For our corporate clients, who can better afford the premium, we will often recommend our seasoned attorneys.

 

Sample Patents

A representative sampling of some of our patent work over the past 10 years.
  • US 20110073160(A1) (USPTOlink) "RADIANT ENERGY CONVERSION SYSTEM",December 7, 2010.

  • US 20110007500(A1)  (USPTOlink) "APPARATUS FOR A SOLAR WINDOW NIGHTLIGHT",August 30, 2010.

  • WO/2010/138632 (WIPOlink) "A PORTABLE, COLLAPSIBLE, WORKSTATION TRAY TABLE APPARATUS", May 26, 2010.

  • WO/2010/008399 (Espacenet link)"DYE DOPED GRAPHITE GRAPHENE SOLAR CELL ON ALUMINUM", July 28, 2010

  • WO 2010132207(A2) (USPTOlink) "A SYSTEM, METHOD AND COMPUTER PROGRAM PRODUCT FOR COLLECTING AND MANAGING ALLOY VERIFICATION", 28-APR-2010.

  • US20110004486(A1)  (USPTOlink) "System and a Method for Purchasing Healthcare Products", April 28, 2010.

  • US20110073764(A1)  (USPTOlink) "Method and System for Nuclear Imaging Using Multi-Zone Detector Architecture",February 16, 2010.

  • US20110035291 (USPTOlink) "Method and System for Online Redistribution of Information", February 2, 2010.

  • US20100187193(A1)  (USPTOlink) "Shoe Rack Attachment", January 25, 2010.

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  • US 20060112332 (USPTO link) "System and method for design checking", May 25, 2006

  • US 20060042495 (USPTO link) "System and method for zero latency distributed processing of timed pyrotechnic events", March 2, 2006

  • US 20050269827 (USPTO link) "Apparatus for lifting of ferromagnetic metal sheets", December 8, 2005
  • US 20060129463 (USPTO link) "Method and system for automatic product searching, and use thereof", December 15, 2004

  • US 20060183505 (USPTO link) "Digital mobile planner", February 13, 2006

  • US 20060176524 (USPTO link) "Compact portable document digitizer and organizer with integral display", February 2, 2006

  • US 20050012723 (USPTO link) Move Mobile Systems, Inc. (Los Altos, CA) "System and Method for a Portable Multimedia client"

  • US 20060010446 (USPTO link) Embedio, Inc., Brea, CA "Method and system for concurrent execution of multiple kernels"

  • US 20050218971 (USPTO link) "System and Method for an Auto-Tracking, Self-Calibrating Voltage Generator"

  • US 2005 6977341 (USPTO link) "Apparatus for utility outlet control", December 20, 2005

  • WO2006113312 (WIPO link) "METHOD AND SYSTEM FOR STRING-BASED BIOMETRIC AUTHENTICATION", April 4, 2006

  • US 20060251290 (USPTO link) "Method and system for composing a digital signature graphic appearance and specifying a document display location thereof", April 22, 2006

  • US 20050268377 (USPTO link) "Head restraint device", December 8, 2005

  • US 20060101124 (USPTO link) "Method and apparatus for mass email transmission", November 7, 2005

  • US 20050239538 (USPTO link) "System and method for gambling video games"

  • US 20050240525 (USPTO link) "System and method for product attribute comparison"

  • US 20060100892 (USPTO link) "System and method for neighborhood affinity based online environments", August 4, 2005

  • US 20060036410 (USPTO link) "System and method for fabric hand evaluation"

  • US 20050222862 (USPTO link) "System and method for designing custom jewelry and accessories"

  • US 20060249423 (USPTO link) "Method and apparatus to identify and separate medicinal preparations and dosages thereof", June 27, 2006

  • US 20060236565 (USPTO link) "Ride-on snow blower", April 22, 2006

  • US 20060144340 (USPTO link) "Apparatus for a disposable food feeding container", December 21, 2005

  • US 20060108060 (USPTO link) "Fusible web applique and fabrication method thereof ", November 17, 2005

  • US 20060065668 (USPTO link) "Apparatus for single handed can holding", September 14, 2004

  • US 20050103146 (USPTO link) "Manual transmission shifter"

  • US 20060144872 (USPTO link) "Device for the portioned dispensing of contained product, and method of use thereof", January 3, 2005

  • US 20060107818 (USPTO link) "Apparatus for dampening impact vibration in manual tools", November 24, 2004

  • US 20050062240 (USPTO link) "Snowboard control device"

  • US 20060131830 (USPTO link) "Apparatus for stabilizing a ", December 20, 2004

  • US 20050109189 (USPTO link) "Pick for stringed musical instruments"

  • US 20060092002 (USPTO link) "Apparatus and method for car relocation and parking timer", November 4, 2004

  • US 20030173945 (705 kb) Genesis Microchip Inc. (Alviso, CA) "Method and apparatus for digital frequency conversion", March 18, 2002

  • US 20030126305 (640 kb) Sun Microsystems, Inc. (Santa Clara, CA) "Method and apparatus for efficient object sub-typing", December 27, 2001

  • US 6,538,313 (475 kb) National Semiconductor Corp. (Santa Clara, CA) "IC package with integral substrate capacitor", March 25, 2003

  • US 6,664,615 (760 kb) National Semiconductor Corp. (Santa Clara, CA) "Method and apparatus for lead-frame based grid array IC packaging", December 16, 2003

  • US 6,765,298 (500 kb) National Semiconductor Corp. (Santa Clara, CA) "Substrate pads with reduced impedance mismatch and methods to fabricate substrate pads", June 12, 2003

  • US 6,607,941 (1.5 Mbyte) National Semiconductor Corp. (Santa Clara, CA) "Process and Structure Improvements to Shellcase Style Packaging Technology", January 11, 2002

  • US 20050178039 (USPTO link) "APPARATUS AND METHOD FOR CLEANING PAINTBALL GUNS"

  • US 20050184266 (USPTO link) "Apparatus and method for the freeing of seized valves"

  • US 20050186032 (USPTO link) "Underwater ambient pressure viewing tunnel system"

  • US 20050230928 (USPTO link) "Power assisted hand truck"

  • US 20050189284 (USPTO link) "Removable sieve device for a dry food dispenser "

  • US 20050205180 (USPTO link) "Method and apparatus for three dimensional object covers"

  • US 20030093792 (USPTO link) "Method and apparatus for delivery of television programs and targeted de-coupled advertising", June 27, 2001

  • US 20030101451 (2.6 megaByte) "System, method, and software application for targeted advertising via behavioral model clustering, and preference programming based on behavioral model clusters", January 9, 2002

  • US 20030101449 (2.5 megabyte) "System and method for behavioral model clustering in television usage, targeted advertising via model clustering, and preference programming based on behavioral model clusters", January 9, 2002

  • US 20030067554 (USPTO link) "System and method for personalized TV", September 24, 2001

  • US 20030097657 (1.8 Mbyte) "Method and system for delivery of targeted programming", September 14, 2001

  • US 20060065668 (USPTO link) "Apparatus for single handed can holding", September 14, 2004

  • US 20060054674 (USPTO link) "Efficient clothing article organizer", September 14, 2004

  • US 20060042000 (USPTO link) "Efficient water closet", August 30, 2004

  • WO2006014354 (USPTO link) "METHOD AND SYSTEM FOR CONCURRENT EXCUTION OF MUTIPLE KERNELS"

  • WO2005111940 (USPTO link) "METHOD AND SYSTEM FOR INTERACTIVE THREE-DIMENSIONAL ITEM DISPLAY"

  • WO2005107907 (USPTO link) "SYSTEM AND METHOD FOR GAMBLING VIDEO GAMES"

  • WO2006009936 (WIPO link) "SNOWBOARD BACK FOOT SUPPORT APPARATUS"

  • US 6,285,173 (350kB) Texas Instruments Inc. (Dallas, TX) "Method to Switch MOSFETs Using Recycled, Parasitic Energy", September 4, 2001

  • US 6,310,469 (350kB) Texas Instruments Inc. (Dallas, TX) "System and Method to Detect Synchronous Switching Regulator Light Load", Oct. 30, 2001

  • US 6,492,793 (850 kB) Texas Instruments Inc. (Dallas, TX) "High efficiency switching DC-DC regulator", December 10, 2002

 

 



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