The PCT (international) and USPTO (U.S.) say they publish patent applications publicly, after 18 months from filing, even if the patent is NOT approved. What is the logic behind this? Shouldn’t I be able to revise a patent that failed submission, on my own time? How can 5 or 10 or 20 years of private development be completely dumped out publicly with absolutely zero protection if someone doesn’t like one single clause or diagram and rejects an entire patent?
Is it possible that an involved patent application can be partly approved (such as approving some “claims” and not others), so that if you know you have something solid and have prepared it well, you don’t have to worry about your entire thing being rejected for some stupid reason? Everything online says it’s absolutely essential to have a pricey patent attorney be involved in your application, or everything could drastically backfire. It almost looks like it’s designed to drastically backfire unless you pay up. Does this process really make logical sense, or is it just one big global scam that I have to bow down to if I ever actually want to own any of my own work?
(The USPTO does allow the inventor to file special a nonpublication request, but this is only U.S. and not nationally.)
Thanks for any replies. You guys are always so helpful!
The whole point of patents is to publicize them. If you want to get a patent for privacy purposes, you’re doing it wrong. Also, if you applied for a patent, you have established proof you invented first, preventing others from taking credit. Publishing applications prevents people from bringing the same ideas over and over to the PTO. Publishing failed applications prevents people from making the same mistakes over and over. In theory, at least.
A critical reason to publish before granting (i.e., during examination) is to solicit from the field whether the proposed patent is actually novel. This is where prior art often surfaces. You’re not allowed to claim patent protection for something everyone’s already been doing all along, even if it’s not already patented. (Current trend in business process and software patents notwithstanding :mad:)
Well, a patent application is published in the US only if the application is still pending. Abandoned applications are not published.
It is very rare that the claims that are originally filed are the same as the ones that are allowed. They can be amended or canceled to overcome a USPTO rejection. Sometimes new claims get added. If the inventor has enough money to spend on prosecution, you can get a patent out of pretty much any application. Whether it is a useful patent is another story.
One way to get around the publication reuirement is to file a US provisional application, as they are not published. You still have to eventually file a nonprovisional application though, and the nonprovisional will get published. But you can buy some time with the provisional.
Of course that then assumes someone *will *notice prior art or obvious development and bring it up in a timely fashion – not so fair an assumption in the age of info overload, leading to the current trend you mention.
Well, for one thing, it’s very hard to completely lose your patent application just because “someone doesn’t like one single clause or diagram”. Almost all patent applications undergo some degree of amendment during their prosecution, specifically to fix just these sorts of problems prior to the patent being issued. It is possible to have some problems which simply cannot be fixed under the law, but those cases are exceedingly rare.
Again, almost every issued patent has had their claims amended during prosecution, to address formality errors, errors in logic, or to distinguish them over the prior art as cited by the patent office. Some claims may be deleted outright, but when it issues, every claim that remains is presumed to be valid until shown otherwise in the courts.
It’s not “designed to backfire”, it’s designed so that issued patents have a reasonable chance that their presumed validity will actually stand up in court, should the patent ever be litigated. It is a complicated process that lives in the wild overlap zone of the worst of legal writing combined with the worst of scientific/technical writing, with a long history of jurisprudence that must be navigated. That’s why almost everyone suggests hiring a patent agent. Private inventors who represent themselves are notorious for making rookie mistakes that end up costing them a lot, or wasting a lot of their time.
Publishing prior to grant also gives people in the industry fair notice that a patent may eventually issue for things that they have independently developed after the original patent application was filed. This way, they can either stop doing it before being sued for infringement, or make a choice to continue, in the hopes that the application will either be refused outright, or restricted in scope sufficiently to avoid the potential infringement.
