My Patent Application is Filed-Now What?

Once someone has developed an idea, and has taken the necessary steps of consulting a patent attorney or patent law firm, they usually wonder what happens next. Of course the legal representative will explain the process of getting a patent, but it’s advantageous to have some advance knowledge of how the process works and what the inventor can do while waiting for a decision from the Patent Office.

If the a patent attorney has already filed a patent application for the invention, then that suggests that a successful, comprehensive patent search has found that no similar patents. Once a patent application has been filed, the applicant’s status is referred to as “Patent Pending”. The next step in the application process is referred to as the “patent prosecution” phase, which generally proceeds as follows:

First, an examiner from the United States Patent and Trademark Office (USPTO) reviews the application to make a decision on whether the invention is patentable. The USPTO provides a manual (Manual of Patent Examination Procedure) to help them determine what is patentable as you can read on

For example, slogans, logos and names are considered trademarks, while music, art and writings fall under the category of copyrights. These types of intellectual property are not patentable. Patentable subject matter would include: business methods, processes, compositions, products and machines. The examiner must ensure that the actual invention falls within one of the established categories of patentable subject matter.

If the examiner finds that the request falls within one of the acceptable categories, the USPTO must then investigate whether the patent is for an actual new invention of a product or process. The patent office will conduct another detailed search to help determine if the invention is new. Should there be a similar patent pending application, the inventor with the earlier date of invention gets awarded the patent. (The date of invention is legally established as the date when the inventor has proven it works, or the day on which a workable process was conceived).

Once the patent prosecution phase is underway at the USPTO, the company or entrepreneur will have completed and signed documentation that can be used as evidence of their conception of the idea. The inventor can then claim ownership of the product, composition, process or machine. As such, they should start labeling the product or process awaiting decision on the patent application as “patent pending”. Appropriate markings on the product or process include: “pat. pend”, “pat. pending”, or “patent applied for”, followed by the application number.

This gives warning to others that the inventor may be able to bring a legal suit against any individual or company who utilizes, copies or sells an invention if the patent is awarded. Those who infringe a patent could be sued for damages as well as back-dated and future royalties and have their productions or manufacturing processes seized.

After eighteen months, the U.S. Patent and Trademark Office publishes the application. (note: An inventor can request Non-Publication at the time of patent filing to avoid publication.) However, should the USPTO publish it prior to the patent being granted, the inventor has provisional rights during the patent-pending stage and can sue for damages from the date the application was published. Once the patent application is approved, all patent rights begin and infringement issues may be pursued as was explained in article.

Patent protection allows the creator of an idea to exclude others from making, using or selling the product, method or process. The patent owner can then sell rights to companies or other parties in exchange for royalty payments or some other form of compensation. An inventor should therefore seek patent protection for their invention as soon as possible.

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