HOW IS A PATENT CREATED?


A patent does not exist until the United States Patent & Trademark Office (the USPTO) ssues a certificate of registration.  This is after a detailed application is submitted and reviewed by the patent examiners in the USPTO.  Prior to final action by the USPTO, the issuance of a patent can be challenged by those people who claim that they already invented the device which is the subject of the patent.

The patent rights exist from the date the patent is issued, but the application date cuts off later applications.  In other words, if someone using a device that infringes on the patent stops using the device when the patent is issued, there is no infringement.  However, if that other person files an application after your application, yours will take priority over the later filing.  

Recent amendments set the patent time period at 20 years.  However, since under GATT (the General Agreement on Tariffs and Trade) the 20 years starts from the date of filing, delays in the issuance of patents have caused inventors considerable loss of royalties and patent rights.  As a result, Congress passed the American Inventors Protection Act of 1999 which, among other things, allows for certain time periods that arise from delays in issuing patents to extend the 20 year patent period.

Also, if you do not file within one year of the commercialization or publication of your invention, your patent right is lost.  Many foreign countries, however, do not have this one year grace period.  So if you wait ten months and then file, you may have rights in the U.S. but not overseas.

There is also a provisional patent and a patent disclosure statement.  Neither is a true patent.  The provisional patent is used in situations where it is not feasible to build and test your invention, or have someone witness the conception of the invention.  It is simpler and less expensive than a regular patent application but does not start you down the road to obtaining a patent.  Also, if you do not file for a regular patent within one year, your rights are lost.  Finally (among other drawbacks), if the disclosure is not adequate, your claims in your later patent application may not extend back to your filing date, or your entire patent application may be denied for failure to adequately disclose your invention.

The patent disclosure statement is simpler.  For a small fee, the Patent Office will take information that will establish the date of your conception (which is important when competing applications are being considered).  But if you do not file a regular patent application within 2 years, all your rights are lost.  The better way to preserve your invention is to document it, build it, test it, and have your efforts witnessed.  You can't claim "patent pending" if you file a patent disclosure statement, although a copy of the filing with the Patent Office may be sufficient to keep thieves at bay while you go forward with patenting your invention.


Law Offices of Douglas Clark Hollmann


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