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54 | <strong>Patent</strong> it YOURSELF be as impartial and competent as possible, which means they shouldn’t be close relatives or people who have been working so closely with you as to be possible coinventors. A knowledgeable friend, business associate, or professional will make an excellent witness, provided he or she has the necessary technical ability or background to understand the invention. Generally, a witness who understands what the invention does and how it’s made and used will be adequate. But if the invention is technically complex, it’s best to get a witness who understands the invention’s underlying theory. The witness should also be someone who’s likely to be avail able later. Obviously, a person who’s seriously ill, or of very advanced age, wouldn’t be a good choice. Don’t ask your patent attorney (if you are using one) to perform this function, since the courts and the PTO won’t allow an attorney to represent someone and also be that person’s witness. If the invention is a very simple mechanical device, practically anyone will have the technical qualifications to be a witness. But if it involves advanced chemical or electronic concepts, obviously a person with an adequate background in the field will have to be used. The witness need not understand the theory behind the invention, but should be knowledgeable enough to understand what it does and how it works. If called upon later, the witnesses should be able to testify to their own knowledge that the physical and/or chemical facts of the entry are correct. Thus they shouldn’t just be witnesses to your signature, so you should not use a notary or a lay person who just witnesses your signature, as do witnesses to a will. Rather the witnesses should actually read or view and understand the actual technical subject material in the notebook, including the actual tests if they are witnessing the building and testing (Fig. 3B). Obviously, then, you should call in your witnesses to observe your final tests and measurements so that they can later testify that they did witness them. Should You Have Your Notebook Entries or Disclosure Notarized? Many inventors ask if they should take their note book or disclosure to a notary and sign it before the notary and have the document notarized. While notarization is slightly better than no witnesses at all, notarization is far inferior to live witnesses. Why? In the U.S. system of jurisprudence, the triers of fact (judge or jury) base their decisions primarily on the testimony of live witnesses, who are subject to cross examination and who understand the document in question and are not merely a “signature witness.” While one witness may be sufficient, the law gives much greater credence to two. If both are available, your case will be very strong. Also having two witnesses will enhance the likelihood of at least one of them being available to testify at a later date. Also, if a dispute occurs between two inventors, the one with the greater number of witnesses will prevail, assuming all other considerations are substantially a wash. Some notebooks already contain, on each page, a line for the inventor’s signature and date, together with the words “Witnessed and Understood” with lines for two signatures and dates. If your notebook doesn’t already contain these words and signature lines, merely write them in as indicated in Figs. 3A to 3C. To really tie down the trade secret status of your invention, you should add the words “The above confidential information is” just before the words “Witnessed and Understood,” as has been done on Form 3-2 and on Figs. 3A, 3B, and 3C. You and the witnesses should sign and enter the date on the appropriate lines at the end of your description of the conception of your invention and at the end of your description of your building and testing. 6. What to Do With the Notebook Now that you’ve made those nice notebook records of conception and hopefully building and testing, what should you do with the notebook? Basically nothing, except to keep it in a safe place in case it’s ever needed (hopefully not!) for one of the six “legal” reasons under Section C, above, and to use it liberally as needed for one of the “invention process” reasons under Section B, above. G. Another Way to Record Conception or Building and Testing— The Invention Disclosure Suppose you conclude that for some good reason it’s too difficult or inconvenient for you to keep a notebook or technical diary. There’s a second, albeit somewhat inferior, way for you to record the conception or building and testing of your invention. This is by using a document called an “Invention Disclosure.” Despite its formidable name, an Invention Disclosure is hardly different from a properly completed notebook entry of an invention. <strong>It</strong> should be a complete record of your invention, including a title, its purpose(s), advantages, a detailed description of it, in sufficient detail so that one having ordinary skill in the field of your invention will be able to make and use it, possible novel features, ramifications, details of its construction if you built it, and
ChAPtER 3 | DOCUMENTATION AND THE PPA | 55 Invention Disclosure Inventor(s): Irma Inventor Address(es): 1919 Chestnut St., Philadelphia, PA 19103 Title of Invention: Self-Adjusting Can Opener Sheet 1 of 1 To record Conception, describe: 1. Circumstances of conception, 2. Purposes and advantages of invention, 3. Description, 4. Sketches, 5. Operation, 6. Ramifications, 7. Possible novel features, and 8. Closest known prior art. To record Building and Testing, describe: 1. Any previous disclosure of conception, 2. Construction, 3. Ramifications, 4. Operation and Tests, and 5. Test results. Include sketches and photos, where possible. Continue on additional identical copies of this sheet if necessary; inventors and witnesses should sign all sheets. I thought of this can opener while at my friend Roberta’s wedding last Sunday. I saw the caterer having trouble opening small and large cans with several openers. Thinking there was a better way, I recalled my Majestic KY3 sewing machine clamp and how it was adjustable and thought to modify the left arm to accommodate a can opener head. My can opener will work with all sizes of cans and is actually cheaper than the most common existing one, the UR4 made by Ideal Co. of Racine, WI. My can opener comprises a sliding clamp 10, a pincer groove 12, [etc.] as shown in the following sketch: Sketch: Operation: The user operates the can opener in the same way as any squeeze-and-turn opener for any size can. Instead of sliding clamp 10, I can use a special notch as follows: I believe that the combination of sliding clamp 10 and pincer groove 12 is a new one for can openers. Also I believe that it may be novel to provide a frammis head with my whatsit. The Acme KZ122 can opener, mfgd. by Acme Kitchenwares of Berkeley, CA, and p. 417 of “Kitchen Tools & Their Uses” (Ready Publishers, Phila. 1981) show the closest can openers to my invention, in addition to the devices already mentioned. Irma Inventor 20xx Jul 6 Inventor(s): Date: / / Date: / / The following understand, have witnessed, and agree not to disclose the above confidential information: Griselda Hammelfarb 20xx Jul 7 Date: / / Neonore Zimla Date: 20xx / Jul / 10 Fig. 3C—Invention Disclosure (Form 3-2 in Appendix 7)
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15th edition Patent It Yourself You
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Acknowledgments My deep thanks go t
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2 3 4 The Science and Magic of Inve
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8 9 E. Make and Sell Your Invention
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Your Legal Companion A. You Don’t
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C H A P T E R 7 What Should I Do Ne
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Nondisclosure Agreement 1. Parties.
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About the Author David Pressman is
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