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Encyclopedia > Patent application
Patent law



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A patent application is a request pending at a patent office for the grant of a patent for the invention described and claimed by that application. An application consists of a description of the invention (the patent specification), together with official forms and correspondence relating to the application. The term patent application is also used to refer to the process of applying for a patent, or to the patent specification itself. A patent is a set of exclusive rights granted by a state to a patentee (the inventor or assignee) for a fixed period of time in exchange for the regulated, public disclosure of certain details of a device, method, process or composition of matter (substance) (known as an invention) which... The history of patents and patent laws is generally considered to have started in Italy with a Venetian Statute of 1474. ... Patents are legal instruments intended for controlling technology-driven socio-economic progress and providing a general benefit for the society as a whole. ... Patent prosecution describes the interaction between an Applicant, or their representative, and a patent office with regard to a patent, or an application for a patent. ... Within the context of a national or multilateral body of law, an invention is patentable if it meets the relevant legal conditions to be granted a patent. ... The examples and perspective in this article or section may not represent a worldwide view. ... It has been suggested that Licensing (strategic alliance) be merged into this article or section. ... European patent law covers a wide range of legislations including national patent laws, the Strasbourg Convention of 1963, the European Patent Convention of 1973, and a number of European Union directives and regulations. ... Japanese patent law is based on the first-to-file principle and is mainly given force by the Patent Act (特許法 Tokkyohō) of Japan which consists of 204 articles. ... The United States patent law is a first-to-invent patent legal framework in contrast to all other national patent laws. ... This is a list of legal concepts relating to patents, including special types of patents and patent applications. ... A patent office is a governmental or intergovernmental organisation which controls the issue of patents. ... A patent is a set of exclusive rights granted by a state to a patentee (the inventor or assignee) for a fixed period of time in exchange for the regulated, public disclosure of certain details of a device, method, process or composition of matter (substance) (known as an invention) which... An invention is an object, process, or technique which displays an element of novelty. ... Patent claims are usually in the form of a series of numbered expressions, or more precisely noun phrases, following the description of the invention in a patent or patent application, and define, in technical terms, the extent of the protection conferred by a patent or by a patent application. ...


In order to obtain the grant of a patent, a person, either legal or natural, must file an application at a patent office with jurisdiction to grant a patent in the geographic area over which coverage is required. This will often be a national patent office, such as the United Kingdom Patent Office or the United States Patent and Trademark Office (USPTO), but could be a regional body, such as the European Patent office. Once the patent specification complies with the laws of the office concerned, a patent may be granted for the invention described and claimed by the specification. The United Kingdom Patent Office is the government agency responsible for maintaining registers of intellectual property including copyright, designs, patents and trade marks in the United Kingdom. ... PTO headquarters in Alexandria The United States Patent and Trademark Office (PTO or USPTO) is an agency in the United States Department of Commerce that provides patent and trademark protection to inventors and businesses for their inventions and corporate and product identification. ... The European Patent Organisation (EPO or EPOrg in order to distinguish it from the European Patent Office, which is the main organ of the organisation) is a public international organisation set up by the European Patent Convention. ...


The process of "negotiating" or "arguing" with a patent office for the grant of a patent, and interaction with a patent office with regard to a patent after its grant, is known as patent prosecution. Patent prosecution is distinct from patent litigation which relates to legal proceedings for infringement of a patent after it is granted. Patent prosecution describes the interaction between an Applicant, or their representative, and a patent office with regard to a patent, or an application for a patent. ... A lawsuit is a civil action brought before a court in order to recover a right, obtain damages for an injury, obtain an injunction to prevent an injury, or obtain a declaratory judgment to prevent future legal disputes. ... The examples and perspective in this article or section may not represent a worldwide view. ...

Contents

National, regional and international applications

Depending upon the office at which a patent application is filed, that application could either be an application for a patent in a given country, or may be an application for a patent in a range of countries. The former are known as "national (patent) applications", and the latter as "regional (patent) applications".


National applications

National applications are generally filed at a national patent office, such as the United Kingdom Patent Office, to obtain a patent in the country of that office. The application may either be filed directly at that office, or may result from a regional application or from an international application under the Patent Cooperation Treaty (PCT), once it enters the national phase. The Patent Cooperation Treaty (PCT) provides a unified procedure for filing patent applications to protect inventions internationally. ...


Regional applications

A regional patent application is one which may have effect in a range of countries. The European Patent Office (EPO) is an example of a Regional patent office. The EPO grants patents which can take effect in some or all countries contracting to the European Patent Convention (EPC), following a single application process. The Convention on the Grant of European Patents of 5 October 1973, commonly known as the European Patent Convention (EPC), is a multilateral treaty instituting the European Patent Organisation and providing an autonomous legal system according to which European patents are granted. ...


Filing and prosecuting an application at a regional granting office is advantageous as it allows patents in a number of countries to be obtained without having to prosecute applications in all of those countries. The cost and complexity of obtaining protection is therefore reduced.


International applications (under the Patent Cooperation Treaty)

The Patent Cooperation Treaty (PCT) is operated by World Intellectual Property Organization (WIPO) and provides a centralised application process, but patents are not granted under the treaty. The Patent Cooperation Treaty (PCT) provides a unified procedure for filing patent applications to protect inventions internationally. ... Headquarters in Geneva The World Intellectual Property Organization (WIPO) is one of the specialized agencies of the United Nations. ...


The PCT system enables an applicant to file a single patent application in a single language. The application, called an international application, can, at a later date, lead to the grant of a patent in any of the states contracting to the PCT. WIPO, or more precisely the International Bureau of WIPO, performs many of the formalities of a patent application in a centralised manner, therefore avoiding the need to repeat the steps in all countries in which a patent may ultimately be granted. The WIPO coordinates searches performed by any one of the International Searching Authorities (ISA), publishes the international applications and coordinates preliminary examination performed by any one of the International Preliminary Examination Authorities (IPEA). Steps such as naming inventors and applicants, and filing certified copies of priority documents can also be done centrally, and need not be repeated. The Paris Convention for the Protection of Industrial Property, signed in Paris, France, on March 20, 1883, is an important and one of the first intellectual property treaties. ...


The main advantage of proceeding via the PCT route is that the option of obtaining patents in a wide range of countries is retained, while the cost of a large number of applications is deferred.


Types of 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, plant patents, and design patents, each of which can have their own substantive and procedural rules. In United States patent law, utility is a patentability requirement. ... The Plant Patent Act of 1930 is a United States federal law spurred by the work of Luther Burbank. ... weener ...


Standard application

A standard patent application is a patent application 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 is referred to as a "non-provisional" application. Patent claims are usually in the form of a series of numbered expressions, or more precisely noun phrases, following the description of the invention in a patent or patent application, and define, in technical terms, the extent of the protection conferred by a patent or by a patent application. ...


Provisional applications

Provisional patent applications can be filed at many patent offices, such as the USPTO[1] in the United States of America. A provisional application provides the 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. The disclosure in a provisional application may, within a limited time (one year in the US), be incorporated into a standard patent application 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. Under United States patent law, a provisional application for patent is a type of national application for patent filed in the United States Patent and Trademark Office (USPTO), but which does not mature into an issued patent unless further steps are taken by the applicant. ... The United States Patent and Trademark Office (PTO or USPTO) is an agency in the United States Department of Commerce that provides patent and trademark protection to inventors and businesses for their inventions and corporate and product identification. ... The Paris Convention for the Protection of Industrial Property, signed in Paris, France, on March 20, 1883, is an important and one of the first intellectual property treaties. ... A patent application is a request pending at a patent office for the grant of a patent for the invention described and claimed by that application. ...


Continuation applications

For more details on this topic, see continuing application.

In certain offices a patent application 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 continuing patent application is a patent application which follows an original patent application. ... A continuing patent application is a patent application which follows an original patent application. ... A continuing patent application is a patent application which follows an original patent application. ...


Divisional applications

For more details on this topic, see continuing application.

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 unity of invention objection is issued, in which case the second (and third, fourth, etc) inventions can be protected in divisional applications. A continuing patent application is a patent application which follows an original patent application. ... In most patent laws, unity of invention is a formal administrative requirement that must be met by a patent application in order to proceed to grant. ...


Application preparation, filing and prosecution

The process of obtaining the grant of a patent begins with the preparation of a specification describing the invention. That specification is filed at a patent office for examination and ultimately a patent for the invention described in the application is either granted or refused.


Patent specification

A patent specification is a document describing the invention for which a patent is sought and setting out the scope of the protection of the patent. As such, a specification generally contains a section detailing the background and overview of the invention, a description of the invention and embodiments of the invention and claims, which set out the scope of the protection. A specification may include figures to aid the description of the invention, gene sequences and references to biological deposits, or computer code, depending upon the subject matter of the application. Most patent offices also require that the application includes an abstract which provides a summary of the invention to aid searching. A title must also generally be provided for the application.


Each patent office has rules relating to the form of the specification, defining such things as paper size, font, layout, section ordering and headings. Such requirements vary between offices.


A description cannot generally be modified once it is filed (with narrow exceptions), so it is important to have it done correctly the first time.


Claims

Main article: Claim (patent)

The claims of a patent specification define the scope of protection of a patent granted with those claims. The claims describe the invention in a specific legal style, setting out the essential features of the invention in a manner to clearly define what will infringe the patent. Claims are often amended during prosecution to narrow or expand their scope. Patent claims are usually in the form of a series of numbered expressions, or more precisely noun phrases, following the description of the invention in a patent or patent application, and define, in technical terms, the extent of the protection conferred by a patent or by a patent application. ...


The claims may contain one or more hierarchical sets of claims, each having one or more main, independent claims setting out the broadest protection, and a number of dependent claims which narrow that protection by defining more specific features of the invention.


Filing date

Main article: Filing date

The filing date of an application is important as it sets a cutoff date after which any public disclosures will not form prior art (but the priority date must also be considered), and also because, in most jurisdictions (notably, not the USA) the right to a patent for an invention lies with the first person to file an application for protection of that invention (See: First to file and first to invent). It is therefore generally beneficial to file an application as soon as possible. The filing date of a patent application is the date the patent application was filed in one or more patent offices. ... In most patent laws, prior art or state of the art (the latter term sometimes has other meanings as well) is all information that has been made available to the public in any form before a given date. ... First to file and first to invent are legal concepts that define who has the right to the grant of a patent for an invention. ...


In order to obtain a filing date the documents filed must comply with the regulations of the patent office in which it was filed. A full specification complying with all rules may not be required to obtain a filing date, for example in the United Kingdom, claims and an abstract are not required to obtain a filing date, but can be added later. However, no subject matter can be added to an application after the filing date and so it is vital that an application discloses all material relevant to the application at the time of filing. If the requirements for the award of a filing date are not met, the Patent Office will notify the Applicant of the deficiencies. Depending upon the law of the patent office in question, correction may be possible without moving the filing date, or the application may be awarded a filing date adjusted to the date on which the requirements are completed.


Priority claim

Main article: Priority right

A patent application may make a claim to priority from another previously filed application, in order to take advantage of the filing date of information disclosed in that earlier application. Claiming priority is desirable because the earlier effective filing date reduces the number of prior art disclosures, increasing the likelihood of obtaining a patent. The Paris Convention for the Protection of Industrial Property, signed in Paris, France, on March 20, 1883, is an important and one of the first intellectual property treaties. ...


The priority system is principally useful in filing patent applications in many countries, as the cost of the filings can be delayed by up to a year, without any of the applications made earlier for the same invention counting against later applications.


The rules relating to priority claims are derived from the Paris Convention for the Protection of Industrial Property and countries which provide a priority system in conformity with the Paris convention are said to be convention countries. These should not be confused with the rules under the Patent Cooperation Treaty (PCT), outlined above. The Paris Convention for the Protection of Industrial Property, signed in Paris, France, on March 20, 1883, is an important and one of the first intellectual property treaties. ...


Security issues

Many national patent offices require that security clearance is given prior to the filing of a patent application in foreign countries. Such clearance is intended to protect national security by preventing the spread and publication of technologies related to (amongst others) warfare or nuclear arms.


The rules vary between patent offices, but in general all applications filed are reviewed and if they contain any relevant material, a secrecy order may be imposed. That order may prevent the publication of the application, and/or the foreign filing of patents relating to the invention.


Should it be desired to file an application in a country other than an inventor's country of residence, it may be necessary to obtain a foreign filing licence from the inventor's national patent office to permit filing abroad. Some offices, such as the USPTO, may grant an automatic license after a specified time (e.g., 6 months), if a secrecy order is not issued in that time.


Anyone working on government contracts involving national security technologies would be well advised to carefully coordinate patent applications with the relevant agencies. Similarly, patent applicants should be aware of the arms export-control laws that may restrict the types of technical information that can be disclosed to any foreign nationals. International Traffic in Arms Regulations (ITAR) is a set of United States government regulations that control the export and import of defense-related articles and services on the United States Munitions List. ...


Publication

Patent applications are generally published 18 months after the earliest priority date of the application. Prior to that publication the application is confidential to the patent office. After publication, depending upon local rules, certain parts of the application file may remain confidential, but it is common for all communications between an Applicant (or his agent) and the patent office to be publicly available.


The publication of a patent application marks the date at which it is publicly available and therefore at which it forms full prior art for other patent applications worldwide.


Patent pending

Main article: Patent pending

Patent pending is a term used to describe an alleged invention that is the subject of a patent application. The term may be used to mark products containing the invention to draw competitor's attention to the fact that they may be infringing a patent if the product is copied after the patent is granted. The rules relating to the use of the term to mark products vary between patent offices, as do the benefits of such marking. In general, it is permissible to apply the term patent pending to a product if there is, in fact, a patent pending for any invention implemented in the product. Wikipedia does not yet have an article with this exact name. ...


Patentable subject matter

Patents are granted for the protection of an invention, but while an invention may occur in any field, patent laws have restrictions on the areas in which patents can be granted. These are known as exclusions from patentability. Within the context of a national or multilateral body of law, an invention is patentable or, in other words, it satisfies the patentability requirements if it meets the legal conditions to be granted a patent. ...


In the USA the scope of patentable subject is significantly larger than in, for example, Europe, where there are exclusions for such things as computer software and methods of performing mental acts. The subject of what should be patentable is highly contentious, in particular whether software and business methods should be patentable.


Search and examination

For more details on this topic, see Patent prosecution.

After filing, and when requested, a patent application is researched to reveal prior art which may be relevant to the patentability of the invention. The search report is published, generally with the application 18 months after the priority date with the application, and as such is a public document. The search report is useful to the applicant to determine whether the application should be pursued or if there is prior art that prevents the grant of a useful patent, in which case the application may be abandoned before incurring further expense. Patent prosecution describes the interaction between an Applicant, or their representative, and a patent office with regard to a patent, or an application for a patent. ...


Some jurisdictions, for example the USA, do not conduct a separate search, but rather search and examination are combined. In that case, a separate search report is not issued and it is not until the application is examined that the applicant is informed of prior art that the patent office examiner considers relevant.


Examination is the process of ensuring an application complies with the requirements of the relevant patent laws. Examination is generally an iterative process, in which the patent office writes to the applicant notifying him/her of its objections to which the applicant responds with arguments and/or amendments to overcome the objections. Amendments and arguments may then be accepted or rejected, triggering further response, and so forth, until a patent is issued or the application is abandoned.


Issue or grant

Once the patent application complies with the requirements of the relevant Patent Office, a patent will be granted further official fees, and in some regional patent systems, such as the European patent system, translations of the application into the official languages of the states in which protection is desired must be filed to validate the patent.


The date of issue effectively terminates prosecution of a specific application, after which continuing applications cannot be filed, and establishes the date upon which infringement may be charged. Furthermore, an issue date for a USA application filed prior to 1995 also factors into the term of the patent, whereas the term of later filings is determined solely by the filing date. In the United States, under current patent law, the term of patent is either 20 years from the earliest claimed filing date or 17 years from the issue date, depending on the filing date and the issue date (provided that the maintenance fees are paid in due time): For applications...


Post-issue or grant

Many jurisdictions require periodic payment of maintenance fees in order to retain the validity of a patent after it is issued and during its term. Failure to timely pay the fees results in loss of the patent's protection. In most patent laws, maintenance fees or renewal fees need to be paid during the term of a patent in order to maintain it into force. ... The term of a patent is the maximum period during which it can be maintained into force. ...


The validity of an issued patent may also be subject to post-issue challenges of various types, some of which may cause the patent office to re-examine the application. In United States patent law, a reexamination is a process whereby a third party or inventor can have their patent application reexamined by a patent examiner to verify that it is valid. ...


See also

This is a list of legal concepts relating to patents, including special types of patents and patent applications. ... A patent office is a governmental or intergovernmental organisation which controls the issue of patents. ... The kokai or kokai tokkyo koho is the name given to the published, unexamined Japanese patent application, as opposed to the kokoku, the examined and approved Japanese patent application. ... The examples and perspective in this article or section may not represent a worldwide view. ... A provisional application for patent is a United States national application for patent filed in the United States Patent and Trademark Office. ... In patent law, the provisional rights are the rights conferred to a published or non-published patent application, i. ... In most patent laws, unity of invention is a formal administrative requirement that must be met by a patent application in order to proceed to grant. ... In United States patent law, a statutory invention registration (SIR) is a publication of an invention by the United States Patent and Trademark Office (USPTO). ...

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