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A patent is a grant of a personal property right by the federal government to an inventor to exclude others from making, using, selling or offering to sell the invention. Patent protection is the only form of legal protection available to functionality, unless it can be kept as a trade secret. This exclusivity distinguishes patent protection from copyright and trademark protection, neither of which can protect the functional aspects of an idea. It also makes patent protection perhaps the most arduous (and valuable) form of intellectual property protection to obtain. A patent is obtained by filing an application with the United States Patent and Trademark Office and is subject to exacting requirements. The invention must be new (not invented or known before), useful and not an obvious variation on existing technology. The patent application itself must explain to one of ordinary skill in the art how to make an use the invention and clearly claim what the invention is. A patent application must be carefully crafted to be internally consistent, include the broadest scope of an invention, and the claim language is written in an arcane legalistic form. Ordinarily only the inventor can file for or obtain a patent on his or her invention, but sometimes others with an interest in the patent can file an prosecute the patent application in the inventor's name. The inventor(s) must swear under oath as to the inventorship of the invention. Filing and obtaining a patent is called "prosecuting" a patent application. After the application is filed the PTO issues a statement that the application is on file and either grants or denies a foreign filing license. After about six months the applicant will receive a "Office Action" either granting or rejecting the application. Utility Patents are granted to anyone who invents or discovers any new and useful process, machine, manufacture, or compositions of matter, or any new and useful improvement thereof. 'Process' means a process or method; new industrial or technical processes may be patented. 'Manufacture' refers to articles which are made. 'Composition of matter' relates to chemical compositions and may include mixtures of ingredients as well as new chemical compounds. Design Patents are granted to any person who has invented a new, original and ornamental design for an article of manufacture. The appearance of the article is protected for a period of 14 years. For example a design patent might cover the shape of the Coca-Cola bottle. Plant Patents are granted to any person who has invented or discovered and asexually reproduced any distinct and new variety of plant, including cultivated sports, mutants, hybrids, and newly found seedlings, other than a tuber-propagated plant or a plant found in an uncultivated state. In summary, a patent can be enormously valuable or essentially worthless, depending on how broad or narrow the protection allowed and the commercial demand for the invention. The value of many Fortune 500 companies is essentially made up of their patent portfolio and many inventors have become extremely wealthy from marketing their clever inventions. Obtaining a patent is an involved and expensive process though, with a simple invention usually costing several thousand dollars in filing fees, attorney fees and the fees of a professional draftsman. One important thing to keep in mind is that a patent application MUST be filed within one year from when the patent was in public use or on sale in this country, or from when the idea was published anywhere in the world. Otherwise an inventor is forever barred from obtaining a patent on the invention: you have in effect donated the invention to the public domain. US patent protection only extends to the states and territories of the United States. Foreign patent protection must be obtained for each individual country although international mechanisms are in place to make this process easier. For most countries you can claim the filing date of you US application if you so claim and timely file the foreign application. Most other countries require that a patent application be filed BEFORE any public use, so if you use it here in the United States before filing a US application, you are likely to be denied a patent in these other countries. It is not legal to use the term "patent pending" or an equivalent phrase without actually having a patent application pending. Serrano v. Telular Corp., 111 F.3d 1578, 42 U.S.P.Q.2d 1538, C.A.Fed. (Cal.), April 25, 1997 (NO. 96-1308) Alliance Research Corp. v. Telular Corp., 859 F.Supp. 400, 32 U.S.P.Q.2d 1626, C.D.Cal., July 25, 1994 (NO. CV 94-1065 RG)
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