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Low-cost Product Patent Application
Obtaining broad, high quality patent protection requires specialized legal and technical expertise, and the investment of several thousands dollars- typically at a cost of about $6-10K to prepare and file the patent application. However, if you are a small entity (i.e., a small business with <50 employees or an individual) on a very limited budget due to the recesion, then we currently can provide you fee reduction assistance- usually 70% ; e.g., only $1,500-$3,000 for a full Utility Patent Application on simple products). If you are looking for affordable, low-cost, quality oriented Provisional "Patent Pending", that is usually 50% of our Utility Patent Application fee (i.e., now as low as $1,000-$1,500, depending upon case complexity), and our cost oriented Provisional "Patent Pending" is only $500-$700.
As experts in 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).
Types of Utility 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 a product, plant patents, and design patents, each of which can have their own substantive and procedural rules.
A standard patent application is a patent application to patent your product 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 a product is referred to as a "non-provisional" application.
Provisional patent applications can be filed at many patent offices, including the US Patent Office (USPTO). A provisional patent application to patent your product 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 a product. 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 product 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.
In certain offices a patent application to patent a product 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.
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 product 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 a product 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 utility, novelty, obviousness, and so called "secondary considerations." Generally, if a product or process does something useful that a "close" one does not, then your product 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 a product 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 product, 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:
Provisional U.S. Patent Applications
One of the fall outs from implementing GATT in the United States is the provisional patent application to patent a product. While certain other jurisdictions have had provisional patent applications for years, this is a first for the United States. Provisional patent applications have been able to be filed since June 8, 1995, when certain GATT mandated patent law changes came into effect, including the new twenty year patent term measured from an application's effective filing date.
Does GATT dictate adoption of Provisional Patent Applications? Certainly not! Provisional Patent Applications are being provided out of a sense of fairness. Allow us to explain . . .
Purpose and Effect
The lifetime of a U.S. Patent is now twenty years from its effective filing date. For foreigners that might well be 21 years from the filing date in their home country patent application if they wait until the end of the one year time period for filing an application in the United States claiming priority to their home country application under the Paris Convention. In order to give U.S. applicants basically the same privilege, the provisional patent application to patent your product was created.
If a provisional patent application to patent a product is filed first, then a regular U.S. patent application to patent your product may be filed within one year claiming priority from the provisional application. The patent subsequently granted on that regular U.S. application will then also have a lifetime of 21 years from the filing date of the provisional application, provided the regular application is filed at the end of the one year time period. It is to be noted that the provisional patent application to patent a product does not mature into a patent -- rather it expires after its one year lifetime. It simply gives a subsequently filed regular patent application to patent a product the possibility of a 21 year lifetime measured from the filing date of the provisional application.
Although provisional patent applications were created to give U.S. applicants parity with foreign applicants, there is no requirement that the applicant be a U.S. National or Resident. Foreign applicants can also file provisional patent applications, they cannot, however, claim priority to another patent application to patent your product in a provisional application. Nevertheless, foreign patent applicants may well want to file provisional patent applications in the United States. The reasons why foreign applicants may find it a good idea to do so are discussed below.
A provisional application differs from a regular application in a number of ways:
1. Provisional applications are not examined on their merits and cannot mature into issued patents - thus, once they serve their purpose, they expire.
2. The official filing fees are lower (as of 2011): $220 for large entities and $110 for small entities - but the usual filing feesmust still be paid when the regular patent application to patent a product is subsequently filed.
3. The paper work involved in filing a provisional application is less than for a regular Patent Application to patent a product. Also, the provisional application does not need to include claims or acknowledge the prior art. However, it does require a full description of the invention.
4. Provisional applications cannot claim priority from other applications. But a regular patent application to patent your product can claim the benefit of multiple provisional applications or the benefit of a combination of provisional and regular filings and/or a foreign application from which priority is claimed under the Paris Convention, so long as the regular patent application to patent a product is filed within one year of such applications.
Provisional Patent Applications - Advantages and Disadvantages
So far provisional patent applications sound pretty good. One might note that there are few disadvantages even if the provisional patent application to patent a product is properly used. If it is improperly used, well then that is a different story, as we shall soon see.
As noted above, provisional patent applications may be filed by both U.S. and non-U.S. applicants. As is turns out, the advantages (and disadvantages) to a U.S. applicant differ from those of a non-U.S. applicant. As such, the benefits and drawbacks of utilizing provisional patent applications differ for such applicants and, therefore, these matters are treated separately below for U.S. and non-U.S. applicants.
Advantages for U.S. Applicants:
1. Provisional patent applications are relatively inexpensive to file.
2. The eventually filed regular application will then have a life which might be as long as 21 years from the filing date of the provisional application.
3. The regular application filed within one year does not have to be identical to the provisional application it replaces. Thus, the regular application can serve the function of a continuation-in-part application. A further advantage is that the patent issuing on that regular application has a twenty year life from its filing date and not the filing date of the provisional application. (If the provisional application had started out life instead as a regular application and the second application were a regular continuation-in-part application, the patent's lifetime would be based on the filing date of the first application, i.e., it would be up to one year shorter). However, if new matter is added to the regular patent application, the applicant must comply with the best mode requirements of U.S. Patent Law and also be aware that they do not have the benefit of a filing date for the new matter until such time as the regular patent application to patent your product is actually filed.
Disadvantages for U.S. Applicants:
1. Since provisional patent applications are easy to file, not to mention the fact that they carry the name 'provisional', a fair number of these applications may be hastily drafted. If regular patent applications with fuller disclosures are not filed until the one year time period for filing a regular application is nearly expired, other parties may file conflicting applications (with better disclosures) in the interim and the first-to-file party may well loose in a contest with the second-to-file party if the disclosure of its provisional application is deemed inadequate to support the claims of its subsequently filed regular application.
2. Even more trouble for the U.S. applicant will arise if the provisional patent application to patent a product is deemed by the patent authorities of other countries not to support a claim to priority by a subsequently filed foreign Patent Application to patent a product. If the applicant publicly disclosed the invention in the interim, the applicant may discover that the subsequently file foreign applications are barred by the applicant's actions in publicly disclosing the invention during the normal one year priority time period.
3. Another date must be remembered and entered to a docketing system. If you miss the one year date for filing the regular application, you cannot claim the benefits of the provisional application.
4. Under the original version of the Patent Law that added the possibility of filing provisional applications, it was not absolutely clear whether a provisional patent application to patent your product could be used as the basis for making a priority claim for filing patent applications in other countries under the Paris Convention. This problems seems to have been overcome by more recent changes to the U.S. Patent Law.
Advantages for Foreign Applicants:
1. Provisional patent applications are relatively inexpensive to file.
2. Provisional patent applications need not be filed in the English language. As such, they can be easily filed about the same time that the foreign applicant is filing their original application in their home country.
3. A U.S. patent, once granted, becomes prior art, against later filed U.S. patent applications, as of its filing date under 35 U.S.C. Section 102(e). If it is based on a provisional patent application, the resulting patent's 102(e) date is the date that the provisional patent application to patent a product was filed. If based solely on a home country patent application to patent a product to which priority is claimed, the 102(e) date is only the actual filing date of the regular U.S. Patent Application to patent your product. Thus, foreign applicants can obtain earlier 102(e) prior art dates for their U.S. Patents if they base them on provisional applications instead of basing them solely upon home country applications.
4. Under 35 U.S.C. Section 102(b), a U.S. patent application to patent a product must be filed within one year of the publication of an invention. The inventor can still obtain a valid U.S. Patent if the inventor can evidence the fact that the inventor made the invention before the publication occurred. Historically, foreign patent applicants have had difficulty in taking advantage of this aspect of U.S. Patent Law since the evidence had to show completion of the invention in the United States. With the GATT mandated changes to U.S. Patent Law and effective January 1, 1996, the invention will no longer have to have been completed in the United States. As such, provisional applications can then give foreign applicants an additional one year time period under 35 U.S.C. Section 102(b) if the provisional application is filed about the same time that the home country application is filed.
5. The regular application filed within one year does not have to be identical to the provisional application it replaces. Thus, the regular application can serve the function of a continuation-in-part application, but without having the down side of an earlier filing date (for the purpose of calculating the term of the resulting patent). However, if new matter is added to the regular patent application, the applicant must comply with the best mode requirements of U.S. Patent Law and also be aware that they do not have the benefit of a filing date for the new matter until such time as the regular patent application to patent a product is actually filed.
6. An eventually filed regular application will have a life which might be as long as 21 years from the filing date of the provisional application, just like a regular application filed under the Paris Convention claiming priority to a home country application. This advantage is probably only of interest to applicants from non-Paris Convention countries.
Disadvantages for Foreign Applicants:
1. Added cost (but not a great deal of added cost).
2. If a foreign applicant chooses to use this procedure, they should file the U.S. provisional application about the same time that they file their home country application. That means that they must be alert to file the provisional application right away and not rely on simply filing a Paris Convention application almost one year later.
3. If filed in a language other than English, an English-language translation must be filed in due course.
4. The expiry of the one-year life of a provisional patent application to patent your product is different than the end of the one year grace period under the Paris Convention if the date falls on a holiday or weekend (i.e. any day the United States Patent and Trademark Office is closed).
Combating the Disadvantages
There are certain strategies for combating these disadvantages. We suggest following up a hastily prepared provisional application with a better draft, which is then filed as a regular U.S. Patent Application to patent a product, as soon as practicable and preferably within a month or two after filing the provisional application. We also suggest filing a regular U.S. patent application to patent a product before any public disclosure of the invention occurs if the filing of foreign applications is of interest since, although most major foreign patent offices have indicated that they will respect priority claims under the Paris Convention based on an U.S. provisional application, this view has been challenged by some commentators and the issue is ultimately one for the courts to decide in many different countries. Thus, do not use the provisional patent application to patent your product to lull yourself into a false sense of security if the provisional application is anything less than a full disclosure of the invention or if foreign corresponding applications are of interest to you. Once a good, full description of the invention has been prepared, file a regular U.S. Patent Application to patent a product. Do not wait for the one year time period nearly to expire, unless you are certain that the extra few months of patent protection makes the added risk in waiting worthwhile. Since many technical arts change quickly, the extra few months of patent protection near the end of the patent's twenty year lifetime may well be meaningless.
One key point to understand regarding our Provisional patent application to patent a product (Provisional Patent Application) practice is that we recognize that not all clients are willing or capable to invest upfront the full cost of a non-provisional Utility Patent Application to patent your product. Although we urge you to have us prepare a non-provisional Utility patent application to patent a product for you, we are willing to accommodate your economic strategy with a customized Provisional patent application approach (to patent a product) that both educates you to the risks and maximizes the effect of what you can afford to invest.
Another key point to understand is that when we talk about a better, average, or lesser quality Provisional Patent Application to patent a product we mean to impart the general expectation that the less time spent on developing the provisional specification, the less likely that it will contain the necessary information to support the disclosure and/or claims in the future non-provisional Utility Patent Application to patent your product. This lack information could limit the claim scope (e.g., no searched prior-art to design around) or give rise to gaps in the specification (such as missing alternative embodiments) that would weaken a resulting patent if it ever went to litigation (albeit extremely unlikely). Another important factor that often affects claim scope, arises from the fact that the current best Patent Practice is to write the claims first, and then draft a minimal specification that fully supports the claims, which is the opposite of how the Provisional Patent Application practice proceeds where the specification is drafted first, and claims are done later in the Utility Patent Application to patent a product. Another benefit of drafting the claims first, is that often it drives added, and/or more precise disclosure in the specification.
You should keep in mind that there are two main levels of invalidity in the patenting and enforcement process, the first is when the Patent Examiner looks at the Utility application (we refer to this as "minimum legal validity", or "examination validity"), and the second is when a Patent Lawyer challenges the issued patent in court litigation (let us call this "litigation validity").
Regarding examination validity, a common quality issue may arise is the way an invention is described in the disclosure of a cost focused Provisional Patent Application to patent a product. Although it is true that a Provisional Patent Application to patent a product may be written in plain-English, problems may still arise where the language used causes vagueness or contradictions, which may result in a rejection during examination of the later-filed Utility Patent Application to patent your product. or legal problems during litigation. Our Revision level of Provisional Patent Application service is intended to clean up the common examination related problems, and the Drafting Basic Provisional Patent Application service takes care of the examination and basic litigation validity related problems.
Fortunately, however, regarding our cost focused Provisional Patent Application services, because we ensure that the provisional application meets the minimum legal requirements, the foregoing issues of quality due to low cost do not tend to prevent you from receiving a patent, but might weaken the awarded patent’s strength and value.
Bay Area IP is relatively unique in the patent industry in working with our clients to achieve their optimal balance between cost and quality. The vast majority of patent firms avidly avoid this trade-off for good reason- it is tough to define the uncertainty!
"Patent Pending" is a phrase that is sometimes seen on manufactured items. Patent pending means that someone has filed for a patent on an invention and is waiting to see if the patent is granted.
Manufacturers use patent pending as a warning that a patent may be issued that would cover the item and that copiers should be careful because they might infringe if the patent issues. Once the patent issues, the patent owner will stop using the phrase patent pending and start using a phrase such as "covered by U.S. Patent Number XXXXXXX."
Applying the patent pending phrase to an item when no Patent Application to patent a product has been made can result in a fine. You can only use the term patent pending if you have applied for a patent (provisonal or non-provisional). Unfortunately, there is a common association of "Patent Pending" exclusively with Provisional Patent Applictions; however, both a provisonal patents and non-provisional patents provide Patent Pending status and there are many reasons not to file a lower quality provisional Patent Application to patent a product.
NOTE: you cannot use the term patent pending if it is not true.
A patentee who makes or sells patented articles, or a person who does so for or under the patentee is required to mark the articles with the word "Patent" and the number of the patent. The penalty for failure to mark is that the patentee may not recover damages from an infringer unless the infringer was duly notified of the infringement and continued to infringe after the notice.
The marking of an article as patented when it is not in fact patented is against the law and subjects the offender to a penalty. Some persons mark articles sold with the terms "Patent Applied For" or "Patent Pending." These phrases have no legal effect, but only give information that an application for patent has been filed in the Patent and Trademark Office. The protection afforded by a patent does not start until the actual grant of the patent. False use of these phrases or their equivalent is prohibited.
The answer to this common question mostly depends on your financial situation and goals. Of course, if you knew that your idea was going to be worth millions of dollars, then their would be no question about it, and you would be sure to file a top quality Utility Patent Application to patent a product right away. However, for inventors who think that their idea might receive little interest in the marketplace, a Provisional "Patent Pending" application may be the best risk/reward option, especially if your budget is extremely limited. Please click here for the main Provisional "Patent Pending" application pros and cons. In general, the decision is boils down to the level of investment you feel is warranted, or the most you can invest, to protect the potential future revenues your idea may generate. If you do not think that your idea will sell in the marketplace, or if you simply can not afford a quality Utility Patent Application to patent your product. then a Provisional "Patent Pending" application might be your best option. On the other hand, if you think that your idea has commercially potential, which may be confirmed, for example, if pertinent professionals or consumers like it, then a Utility Patent Application to patent a product will provide you the best quality patent protection for licensing and against idea theft and knock-off products. Click here for a more detailed explanation of why a Utility Patent Application to patent a product inherently is of much higher quality than a Provisional "Patent Pending" application.
A Full Utility Patent Application costs a lot of money, why do it instead of a Provisional Patent Application (PPA)?
Again, if you knew that your idea was going to be worth millions of dollars, then their would certainly be no question about it, and you would be sure to file a top quality Utility Patent Application to patent a product right away. If you are an individual inventor, which is probably why you are considering a Provisional "Patent Pending" Application, we know it seems like a lot of money at first, but, to frame the context more accurately, like any decision, it is all about assessing the opportunity -vs.- cost. On the opportunity side of the equation, if the opportunity seems to be relatively significant and there is some positive feedback from industry players (e.g., professionals, companies, academia, executives, etc.), then a less quality Patent Application to patent your product (e.g., a cost-focused Provisional "Patent Pending" Application) may risk losing a valuable deal if a big player deems the application as legally insufficient to warrant their investment or licensing. Another significant risk is that the weaker Provisional "Patent Pending" Application might very well have technical and legal gaps in the disclosure that would allow would-be-copiers or licensees to more easily design around your patent, thereby losing all or part of your potential revenue stream. Click Here for a more detailed explanation of why a Utility Patent Application to patent a product inherently is of much higher quality than a Provisional "Patent Pending" Application. Of course, if your confidence in the commercial value of your invention is relatively low, then a full Patent Application to patent a product may not be for you, and you should Click Here to assess your better course of action.
On the cost side of the equation, generally, as the opportunity appears more significant, then the investment warranted usually follows some equation like $ to invest = $ Income Potential x Probability of Success. A low cost patent firm, such as Bay Area IP, can go a long way towards helping you take less upfront risk, while best positioning you to reap the rewards. For example, a typical, high overhead, patent firm would charge any where from $7,000 to $10,000 just to prepare and file a Utility Patent Application to patent a product and about the same amount to prosecute it until issuance. That makes it almost impossible for the independent inventor to invest in a better quality Utility Patent, and forces them into the more risky Provisional "Patent Pending" Application. In contrast, our much lower fees to prepare and file the same Utility Applications gets you in the quality "ball park", at substantially less risk. Our unique affordable-cost approach, provides a service at every quality step from a "full service"Utility Patent Application to patent a product down to a cost focused Provisional "Patent Pending" Application, which enables you to pick your optimal comfort zone balancing the Opportunity -vs.- Cost and Risk -vs.- Reward decisions against your financial situation.
Having already decided upon a Provisional "Patent Pending" Application it is usually the case that you are on a limited budget, or have high uncertainty about the marketability of your idea. For some inventors, another variable is the number of ideas that patent protection is sought. The main decision point factors are as follows:
The first item to consider is your budget. If you simply cannot afford a Quality Oriented Provisional "Patent Pending" Application then the Cost Oriented Provisional "Patent Pending" Application is your way to go. If your budget is not the limiting factor, then the next decision point to consider is how much confidence you have in the marketability of your invention. Of course, the higher your confidence, a proportionately greater investment in patent protection warranted. That is, if you have done some basic marketability research (e.g., professionals like your idea, it is selling on eBay, you see inferior products in the market place, & etc., for marketing ideas read books by Jay Levinson) that is very positive, then you should procure the highest quality Provisional "Patent Pending" Application (if not a full Utility Patent) that you can afford. Similarly, the lower your marketability confidence, a commensurately lower amount of investment is justified. After establishing your budget and level of confidence, then you should decide how much work you are able, or willing, to do yourself with our guidance. If you are willing to provide a detailed description for a Provisional "Patent Pending" Application under our guidance, and have relatively good confidence in the marketability of your idea, but only have a limited budget to work with, then either of our Drafting Basic Plus or Drafting Basic service is ideal. Because the Drafting Basic Plus level of service includes a broad claim, it is a good compromise between cost (e.g., "Drafting Basic" Provisional "Patent Pending" Application) and quality (e.g., the "Good quality" Provisional "Patent Pending" Application). Some inventors have multiple ideas they wish to pursue patent protection for. Often they do not know which one will be the most well received in the marketplace and cannot afford the cost of procuring high quality Provisional "Patent Pending" Applications for all of them. Some clients find a good approach in this situation is to procure, for the idea they have the most confidence in, a Quality Provisional "Patent Pending" Application that is then used as a template to pattern Provisional "Patent Pending" Applications for their other ideas, and use our Cost Oriented Provisional "Patent Pending" Application services to clean up and assure minimum legal validity for each of them.
Infringement of Patents
Infringement of a patent consists of the unauthorized making, using, offering for sale, or selling any patented invention within the United States or U.S. Territories, or importing into the United States of any patented invention during the term of the patent. If a patent is infringed, the patentee may sue for relief in the appropriate federal court. The patentee may ask the court for an injunction to prevent the continuation of the infringement and may also ask the court for an award of damages because of the infringement. In such an infringement suit, the defendant may raise the question of the validity of the patent, which is then decided by the court. The defendant may also aver that what is being done does not constitute infringement. Infringement is determined primarily by the language of the claims of the patent and, if what the defendant is making does not fall within the language of any of the claims of the patent, there is no literal infringement.
Suits for infringement of patents follow the rules of procedure of the federal courts. From the decision of the district court, there is an appeal to the Court of Appeals for the Federal Circuit. The Supreme Court may thereafter take a case by writ of certiorari. If the United States Government infringes a patent, the patentee has a remedy for damages in the United States Court of Federal Claims. The government may use any patented invention without permission of the patentee, but the patentee is entitled to obtain compensation for the use by or for the government. The US Patent Office has no jurisdiction over questions relating to infringement of patents. In examining applications for patent, no determination is made as to whether the invention sought to be patented infringes any prior patent. An improvement invention may be patentable, but it might infringe a prior unexpired patent for the invention improved upon, if there is one.
2010 was a landmark year with regard to the false patent marking. In just a week alone that year a single plaintiff has filed more than 20 separate false marking lawsuits in the US District Court for the Northern District of Illinois, and scores of similar suits have been filed in a variety of courts in recent weeks. These complaints allege that products were physically marked with patent numbers or other notations indicating that the product was covered by a patent when, in fact, the seller knew that the patent had expired, did not cover the product or was invalid.
This avalanche of cases is not due to a sudden flourishing of false patent markings. It is the result of a recent Federal Circuit Court of Appeals decision that established a potentially lucrative payday for plaintiffs who prevail on such claims.
Under Section 292(a) of the Patent Act, marking an unpatented article with intent to deceive the public mandates a fine of “not more than $500 for every such offense.” In The Forest Group, Inc. v. Bon Tool Co., No. 2009-1044 (Fed. Cir. Dec. 28, 2009), the court construed that provision to require imposition of the fine on a per-article basis (as opposed to a per-decision basis). Thus, a false patent marking on one million individual articles could generate an award of up to $500 million. Any persons can serve as plaintiffs in this “qui tam” cause of action, whether or not they have an interest in a patent or suffer any personal injury.
The Federal Circuit recognized that its ruling would encourage “a new cottage industry” of false marking litigation by plaintiffs who have not suffered any direct harm, but it concluded that such a consequence is imposed by the plain language of the statute.
The predicted “cottage industry” emerged in no time. Plaintiffs immediately began to scour store shelves and ads to search for markings of expired or questionable patents and have flocked to court with their claims.
This development warrants immediate caution among companies that regularly mark products with patent numbers or other patent indicia. After briefly summarizing the marking issue, this alert suggests steps to help mitigate false marking risk and potential defenses when faced with false patent marking claims.
Patent holders have good reason to mark patented products. Section 287(a) of the Patent Act provides that failure to mark such a product requires proof of actual notice of the patent before an infringer can be subject to damages. Marking obviates that actual notice requirement. But this reward can be more than offset if one runs afoul of Section 292.
Section 292 prohibits marking a product with either another’s patent, another patentee’s name (akin to counterfeiting) or a patent or application number (or other patent indicium) where no patent or patent application exists (akin to false advertising). Prohibited marks include those signifying expired patents, patents without issued claims reading on the marked product and patents that have been narrowed (e.g., by claim construction) so that no claims read on the marked product. To violate the statute, such marking must be for the “purpose of deceiving the public.”
To limit the risk of patent marking claims, companies should consider the following:
A company faced with a false patent marking claim has available several potential defenses. At the outset of the case, the constitutional validity of the statute could be attacked by a motion to dismiss. Although at least one court has considered and rejected a defendant’s arguments that the plaintiff lacked standing for lack of injury (Pequignot v. Solo Cup Co., 640 F. Supp. 2d 714 (E.D. Va. 2009)), there may be more to say on standing, and the Federal Circuit or the US Supreme Court may reach a different conclusion. For example, in Solo Cup, the court relied on cases holding that an assignee of a proprietary interest of the government (e.g., a qui tam fraud claim for damages under the False Claims Act) has standing. The defendant argued that in a Section 292 case, the interest asserted by the qui tam plaintiff is an interest of the government as sovereign in the enforcement of a law—not a proprietary interest in recovering monetary damages—and that a sovereign interest is not assignable. Although the district court rejected this argument in Solo Cup, commentators have supported the distinction, and we believe it remains viable.
The Solo Cup court also rejected a constitutional challenge to the statute under the “Take Care” Clause of Article II of the US Constitution, based on the government’s lack of control over the litigation. But the Federal Circuit or the Supreme Court might reach a different conclusion. After all, courts have characterized Section 292 as a criminal statute. Traditionally, prosecutors have discretion to decide whether harm to the public requires prosecution and can recommend a quantum of punishment that is commensurate with that harm. Here, a private party controls whether the action will be commenced and recommends the amount of the fine to the court. That problematic aspect of this type of litigation arguably prevents the executive branch from discharging its responsibilities to enforce the criminal laws. The harm is exacerbated by the fact that the court’s discretion is essentially unfettered under the Patent Act.
Defendants also might consider arguing that, insofar as the interest at issue is the sovereign’s interest in enforcement of a criminal law, the lack of standards to determine the amount of the penalty per act may be unconstitutionally vague or arbitrary. Enforcement of such an imprecise standard could lead to excessive fines, particularly given the Federal Circuit’s recent construction of the statute to render each improperly marked article an independent offense.
The most likely route to success in defending against a false patent marking claim is to show on summary judgment a lack of intent to deceive the public. For example, in Solo Cup, it was undisputed that the defendant had knowledge that its product bore marks of expired patents and its product packaging contained a warning that the product “may be covered” by patents when, in some cases, they were not. However, the court held that knowledge of falsity creates only a rebuttable presumption of intent to deceive. A defendant could, and in that case did, offer sufficient evidence to rebut the presumption. With respect to the false patent marks, the court found that Solo Cup, on advice of counsel and for valid business reasons decided to remove the marks over time to minimize costs rather than to deceive the public. With respect to the “may be covered” warning in the product packaging, the court found that Solo Cup, again consistent with advice of counsel, used the warning as a practical way to protect its patent rights where its patent portfolio was constantly changing and where the company had established procedures on its website and phone lines to handle inquiries regarding patents.
The rule in Solo Cup, if applied by other courts, should also preclude liability where a defendant can show that it was negligent only in not promptly removing expired marks. For example, an employee in the law department of a company may have known that the patent expired, information not known to employees in other departments responsible for advertising and marking the products. If the company can demonstrate that the failure to remove marks of expired patents resulted from administrative oversight rather than an intent to deceive, it should not be liable under Section 292. All facts and circumstances should be considered. For example, if a product bears the marks of many valid patents and one expired patent, a company would have a strong argument that it had no intent to deceive since it is difficult to imagine under those circumstances how the mark of one expired patent could mislead the public and chill competition – the concerns underlying Section 292.
Furthermore, even if intent is proven, district courts have discretion to impose per-article damages below $500. Accordingly, a defendant with hundreds of thousands or millions of articles in circulation will have an opportunity to persuade the judge that damages of anything more than, say, a fraction of a penny per article would be inequitable.
Intent to Deceive Still Required
Parties who accidentally mark their products incorrectly are not subject to liability under the statute. The Federal Circuit made clear that the plaintiff asserting a false marking claim must show, by a preponderance of the evidence, that the accused party did not have a reasonable belief that the articles were correctly marked. However, a party's assertion that it did not intend to deceive “'is worthless as proof of no intent to deceive where there is knowledge of falsehood.'” Forest Group, slip op. at 6 (quoting Clontech Labs. Inc. v. Invitrogen Corp., 406 F.3d 1347, 1352 (Fed. Cir. 2005)).
The Forest Group decision provides a good illustration of what can constitute proof of intent to deceive. Forest Group is the assignee of U.S. Pat. No. 5,645,515, which claims an improved stilt of the type commonly used in the construction industry. Forest Group sued its competitor, Bon Tool, alleging that Bon Tool had sold stilts that infringed the '515 patent. Bon Tool counterclaimed, alleging that Forest Group had violated the false marking statute by marking its stilts with the '515 patent even though the patent did not cover Forest Group's product.
In February 2007, the district court issued a claim construction that was contrary to Forest Group's reading of the claims at issue and later granted summary judgment of noninfringement against Forest Group. Nevertheless, the district court found that those decisions, by themselves, did not give Forest Group the requisite knowledge that it should no longer mark its products with the number of the contested patent. The district court noted that the patent was written by an experienced patent lawyer, that the inventors did not have strong academic backgrounds, and that neither of them was versed in patent law. However, in November 2007, a court in another lawsuit involving the same patent construed the claims at issue in a manner similar to that of the first lawsuit and likewise granted summary judgment against Forest Group. The district court concluded that after the second adverse ruling, Forest Group had the requisite knowledge that any continued patent marking would be false. Yet, Forest Group continued to mark its products with the patent number after that date. The district court did not believe Forest Group's claim that it had instructed its manufacturer not to mark the products.
Citing the highly deferential “clearly erroneous” standard of review, the Federal Circuit upheld the district court's determination that Forest Group had a good faith basis to believe that its products were correctly marked prior to the November 2007 summary judgment order. The Federal Circuit noted, however, that “the quantum of proof regarding Forest Group's knowledge in this case is quite high” and went out of its way to point out that it is not necessary to have multiple adverse claim construction and summary judgment rulings in order to prove knowledge of falsity.
Because the district court had not determined how many articles were falsely marked by Forest Group after November 2007, the Federal Circuit remanded the case. On remand, the district court will have to determine the number of falsely marked articles and how large a civil penalty, not to exceed $500 per article, should be imposed.
The Federal Circuit's holding that the false marking statute imposes a penalty for each improperly marked article creates the potential for significant liability for patentees and licensees. Although the Federal Circuit emphasized the trial court's discretion to impose a penalty significantly less than the statutory maximum, the statute's broad standing provision encourages plaintiffs to file lawsuits that may impose costly discovery obligations on patentees and their licensees. For this reason, patentees and licensees likely will need to pay more attention to their product marking decisions.
Specifically, patentees and licensees need to make sure that they have a good faith basis to place their patent numbers on products and continue to make certain the marking is appropriate as products are modified. It also will be important to diligently investigate any assertions that the products are improperly marked. Patentees also will need to establish mechanisms to make certain that products are not marked with expired patent numbers.
Patent licensees who are required to mark as a condition of their license also are affected by this decision. Such licensees may want to consider including in their licenses provisions requiring the patent owner to indemnify them for false marking.
For some parties, it may be too late. The statute of limitations for false marking actions is five years. As a result, some patentees and licensees may already be exposing themselves to financial liability on a much greater scale than they ever anticipated.
Fear of liability, however, should not cause patentees to refrain from marking altogether. Correct marking remains essential to maximizing a patentee's award of damages against infringers. A correct marking can be made by placing the word "patent" or the abbreviation "pat." together with the number of the patent on the patented product itself. If the nature of the product does not permit it to be marked, then the packaging should be marked. Although marking is not required for patents that contain only process or method claims, patentees should consider marking end products where feasible.
Are Patents, Trademarks, Servicemarks, and Copyrights?
What is protected?
Original expression of an idea
Customer's notion of your good or service's source.
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..
How is the right established?
Use in trade
Use in trade
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.
|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.
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.
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.
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 your 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.
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.
There are some good reasons to file a Provisional "Patent Pending" Application, however, it is not always a good idea. To better acquaint yourself with Provisional "Patent Pending" Application characteristics and considerations, you may want to review our FAQ on our Provisional "Patent Pending" Application services and our overview on provisional applications before proceeding.
It is imperative to understand that although a Provisional "Patent Pending" Application may written very informally (e.g., "cutting corners) to cut costs, if the Provisional "Patent Pending" Application does not satisfy the multitude of “best practices” and legal requirements, you can easily lose some or all of your future patent protection rights. Understandably, many small business and independent inventors have an economic incentive to file a Provisional "Patent Pending" Application to attain presumed “Patent-Pending” legal protection while determining the invention’s market value before investing in the cost of a full non-provisional, Utility Patent Application to patent a product.
Bay Area IP recognizes that individual and small business inventors sometimes need a very affordable provisional “Patent-Pending” protection mechanism that they can use to either buy time to raise funds or for market testing their invention before investing in a non-provisional, Utility Patent Application to patent a product. Yet, other situation will have sufficient budget to procure a high quality Provisional "Patent Pending" Application to protect a potentially seminal idea(s). That is why we offer two categories of service- the first is our quality oriented provisional application service, which serves clients who wish to have a relatively good quality follow-on non-provisional, Utility Patent Application to patent a product. and the other category is our cost-focused Provisional "Patent Pending" Application practice, described in some detail below.
When it comes to getting provisional "Patent Pending" all provisional patent application services are NOT created equal. Independent inventors, especially, should not be fooled to believe that Provisional "Patent Pending" Applications do not have the same quality or legal requirements than do full non-provisional, Utility patent applications. If your Provisional "Patent Pending" Application is legally or technically insufficient, for any reason it cannot be corrected after filing. That is because, by law, no new information may added to Provisional "Patent Pending" Applications; hence, any defects in the Provisional "Patent Pending" Application will automatically be inherited into the non-provisional, Utility Patent Application to patent your product. In this way, if you have low quality Provisional "Patent Pending" Application you likely will have a crippled or worthless corresponding non-provisional, Utility Patent Application to patent a product. Thus, not be you not only lose any patent protection you thought you had, yet, even worse, you will be barred from ever patenting your invention (Internationally as well) if it was ever publicly used or disclosed– a high risk to take just to avoid some relatively small upfront expenses. This is why you should always procure the highest level of quality that you can afford.
This cost-focused category of Provisional "Patent Pending" services below provides an ideal vehicle for the independent inventors who are more concerned about attaining a quick “Patent-Pending” status at very low cost so they can buy time to raise funds for a or test market their invention to determine its value before investing significant funds.
Result: Likely an OK quality non-provisional, Utility Patent Application to patent a product. and you defer up to 80% in normal costs (depending on invention complexity) to the non-provisional, Utility Patent Application to patent a product. This work generally proceeds as follows:
For inventors who want a legal professional to legally draft their Provisional Patent Application to patent your product at a relatively low cost, and are not too concerned about patent scope or preserving there International patent rights, yet want their Provisional Patent Application to patent a product to at least cover their core product/service idea and include basic legal “best practices.”
Key features includes the following:
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