A patent for an invention is the grant of a property right to the inventor, issued by the patent office of the country granting the patent, generally for a period of 20 years from the date on which the patent application was filed. A patent grants the patent holder the right to exclude others from making, using, offering for sale or selling the invention in the country where the invention is patented or the importation a product made by use of that invention into the country where the invention was patented.
An invention can be protected by filing a patent application for the invention with the patent office of your country or a foreign country in which the inventor needs patent protection or by maintaining it as a trade secret, if in fact the inventive concept can be maintained as a trade secret.
A prior art search for the invention and the inventive concept has to be conducted to determine if the invention is new.
Software, like any other inventive concept, is patentable provided it meets the requirements for patentability by the patent office of that country.
The Software Patent Institute (SPI) promotes software patents and provides related information about software patents. The Software Patent institute is supported by the United States Patent and Trademark Office which also assists it in providing information and technical support to the public in the form of educational and training programs and providing access to information and retrieval resources concerning software patent prior art.
Open source software is a software code available for free access to the public. Open source software unlike patented software can be copied, edited, redistributed and be incorporated in a program by any programmer.
Technology company. The monetary value of a patent increases the valuation of a company and can also be used by a company as collateral to obtain funding. Market valuation of a patent also assists the patent owner to estimate the commercial feasibility of the product and to plan and market the product more effectively.
The sooner the better. The patent application may be filed at the conceptual stage of the product. A provisional patent application may be filed before a non-provisional patent application (or regular patent application) at the conceptualization stage of the invention.
Under United States patent laws, an idea may also be protected for (1)one year by filing a provisional patent application. A regular or non-provisional patent application must be filed within one year of the filing date of the provisional patent application, failing which the applicant looses the priority date of the earlier filed provisional patent application. For industry design and trademarks, the non-provisional must be filed within 6 months of the date of filing of the provisional application.
Since patenting an invention in each foreign country is an expensive proposition, a foreign patent should be taken out only in the country in which a market for that product exists, or where a market for the product can be created or where the patented product can be manufactured for export to other countries.
An international patent application can be filed under the Patent Cooperation Treaty (PCT) with the World Intellectual Property Organization, Geneva, Switzerland. The PCT has over 125 contracting member states in which the patent application can be filed to protect the invention. Filing a PCT application within 30 months of the first filed application allows the applicant to obtain the filing date of the first filed application in all the contracting states of the PCT.
In a patent application, claims may be filed for structure (i.e., the elements that comprise the product); for method steps of making the claimed invention and for the use of the claimed invention.
There are several routes that may be taken to protect intellectual property (IP).
The downside of a trade secret is twofold: first the trade secret may be reverse engineered. However, if the market for a product is small, a potential competitor will likely not invest the resources to reverse engineer the product. Second, if the product is publicly disclosed (for example, manufactured, sold, or offered for sale) and the product is also maintained as a trade secret for more than (1)one year, it cannot be patented.
The downside of a patent application filed without a non-publication request is that after 18 months the patent application is published.
When filing a patent application, should a patent applicant opt to not having the patent application published after 18 months?
If the patent application is to be filed only with the US Patent And Trademark Office, the client may opt for non-publication of the patent application using U.S.PTO form SB/35. Opting for non-publication precludes the filing of a foreign application and obtaining the priority date of the first filed application.
Software can be considered as a virtual machine, a set of code capable of performing the same function as and replacing an electronic/electrical circuitry. It is the machine, process or function employing the code that is patentable.
A copyright protects the form of expression of an original artistic or literary work that is expressed in a physical medium, but it does not protect the idea or inventive concept. Some examples of products that may be copyrighted are: software, websites, poems, stories, books, paintings, maps, building plans, etc.
Copyright law protects a software code as an original work of authorship. It allows the copyright owner to prevent others from directly copying the source code. However, copyright protection cannot exclude other entities from using the functional aspects of software. Also, it provides no security if a similar code is proved to have been independently developed, whereas patents provide an impregnable protection for software codes. Once a patent right has been granted to the owner of a software, it not only grants the patent holder the right to exclude others from making, using or selling the patented invention but it also gives the patent holder the right to prevent others from creating software that perform similar functions.
While the software code can be protected by copyright, a competitor can still reproduce the program in another software language with a different code. Copyright only protects the form of expression, but not the idea or the invention. A patent protects the novel idea or inventive concept.
The patent system is governed by the intellectual property law of a country and differs from country to country.
Patent valuation or evaluation of a patent or patent portfolio means determining the fair market value of the patented products.
There are various statistical methods to calculate the market value of a patent. IP Legal Services has designed a proprietary method for patent valuation.
In most countries including Europe and Japan, the inventor loses the right to file a patent application if the invention is disclosed to the public before a patent application is filed. The safest route for an inventor is to withhold commercialization or public disclosure of the invention until patent pending status is obtained for the invention by the filing of a patent application. United States and Canada are two notable exceptions where an inventor can obtain a patent after the inventive concept becomes public knowledge provided a patent application for the inventive concept is filed within (1)one year of such disclosure.
No. A patent granted for a product by a country only provides patent protection for that product in that country. For example, a patent granted by the US PTO will protect the patented invention only in the United States of America. To protect the same invention in any other country, for example, India, another patent application has to be filed in the Indian Patent Office.
In almost every country of the world except the US, the patent is granted to the person that files the patent application first. In the US, the patent is granted to the first to invent provided the applicant diligently pursues the filling of the application with the U.S.PTO.
Patent applications that have not been published may only be viewed on Private PAIR. First, fill out form PTO/SB/125A and fax to U.S.PTO Electronic Business Center (EBC) at 866-217-9197 to obtain a Customer Number associated with the patent application number (to view the patent application on-line). EBC will then send you a Customer Number. Then obtain a Digital Certificate. The process is explained on www.U.S.PTO.gov/EBC/digitalcert.HTM.
To track information in published patents: www.uspto.gov -> under Patents click on Status &IFW-> Enter in application no without slash -> Image File Wrapper
Can a patent application be filed for a prophetic invention, i.e., for an invention based only on an idea that has not been tried, tested, perfected, prototyped, or reduced to practice?
Yes, a patent application can be filed for a prophetic invention provided the patent application discloses “how to make and use” the invention in compliance with 35 USC 112. An invention comprises an inventive concept + a reduction to practice. The Courts have held that filing a patent application with the U.S.PTO that shows how to make and use the invention, even if the invention has not been tried, tested, perfected, prototyped or reduced to practice, is the equivalent of a reduction to practice.
To obtain a patent an applicant only needs to show utility, novelty and non-obviousness of what the applicant claim as his workable invention. However, if the claims, on their face, are impossible or unworkable, the claims will be rejected by the US Patent and Trademark Office.