Frequently Asked Questions: Procedural matters

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How do I get a patent on an invention?

To get a patent, you must apply for it at a national or regional patent office, such as the US Patents and Trademarks Office or the European Patent Office. You submit a patent application, which contains a full description of the invention as well as a set of claims that define the invention. The patent office then performs a search of the published literature to determine the novelty of your invention.

This is followed by an examination procedure, in which you and an examiner discuss the merits of your invention and the differences with the published literature that was found in the search. Typically, during the examination the claims are adjusted ("amended") to distinguish the invention from the published literature. If you satisfy the examiner, a patent is issued.

It is strongly recommended that you consult a professional patent attorney before applying for a patent. Writing patent applications, and in particular writing and defending claims is a very complex affair. If you don't do it right, you are likely to end up with a worthless patent, or with no patent at all.

Is the date on which I made the invention important?

Most countries in the world have what is called a "first to file" system. This means that, if two people independently invent the same thing, the first person to get to the patent office gets the patent and the other is out of luck. Important here is the day of filing.

The USA is quite unique in that it has a "first to invent" system. In this system, if two people both apply for a patent on the same invention, a determination must be made to see who invented it first. This may involve examining laboratory logbooks, notes, prototypes, publications and so on. However, it is rare that someone who applied for a patent first is not found to be the first to invent as well.

Can I publish my invention before applying for a patent?

No. If you reveal your invention to a member of the public before applying for a patent, then that revelation becomes prior art and may invalidate your patent application. This is not limited to publications in magazines, books or websites, but also to discussions with fellow inventors, visitors at a trade show and so on. The only exception is other people in the same company, people who have signed a non-disclosure agreement, and people who have a legal obligation to keep your invention confidential (such as the patent attorney who drafts the patent application for you).

There are some countries that have a "grace period" for such prior publications. It is then possible, under certain conditions, to publish your invention without that publication counting as prior art against you in those countries. However, the rest of the world will still count the publication as prior art.

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