Patent It Yourself - PDF Archive

118 | Patent it YOURSELF
you’ll see that the PTO will still probably grant
you a patent.
B. If you answered “Possibly” to Box D, but were not
able to answer “Yes” to any question in Boxes E
and G (you’re unsure about N&URs and there are
no secondary unobviousness factors), take the
“No”/broken-line output from Box G to Box X,
where you’ll see that you probably won’t be able
to get a patent. Don’t give up though, if you still
think you might be able to prove some secondary
factors later, such as commercial success after it
hits the market.
H. Don’t Make Assumptions About the Law
While I’ve tried to explain as much as possible about patent
law, I can’t cover everything. So if you encounter an issue
you don’t know the answer to and can’t find the answer
in this book, I strongly suggest that you don’t act on any
assumptions, because you could suffer for acting on an
incorrect assumption. True examples:
• LeRoy assumed that—because a regular patent
application had to have at least one claim to be
entitled to a filing date—his application, which had
four independent claims, counted as four patent
applications. He then advertised that he had four
patents pending that covered his invention.
• Griselda assumed that if a prior patent showed her
invention, but didn’t claim it, then she was entitled
to get claims to this invention allowed in her patent
application.
To avoid these incorrect assumptions and the harm that
could befall you, I suggest that if you can’t find the answer
to an issue, you look further, ask a patent attorney, call
the PTO’s Help Desk at 800-786-9199, or ask an inventors’
organization.
I. Summary
Treat the one-year rule as holy: You must file a regular or
provisional application within one year after you publicize,
sell, or offer your invention for sale, or after it is used
publicly, or given or shown to another to use without
restriction. However, to preserve foreign rights, you should
file your U.S. application before publicizing the invention.
The law has four requirements for getting a patent: (1)
the invention must be in a statutory class—a machine, an
article, a process, a composition, or a new use of the first
four; (2) it must be useful (safe, not illegal, operable, and
not a nuclear weapon); (3) it must be novel—that is, it must
be different in some way from every single item or prior
art (prior art means any publication, public use, or public
knowledge before your date of invention, which is the earliest
of the date you file a patent application or Provisional
Patent Application); and (4) the novel features must be
unobvious to one with ordinary skill in the art—that is, it
must produce new and unexpected results or have one or
more of the secondary factors of unobviousness.
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