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58 | <strong>Patent</strong> it YOURSELF invention after you file your PPA would have a later filing date than yours, so you would almost certainly be able to win any interference with the thief. To win, the thief would have to prove conception of the invention before you did, and have been diligently attempting to reduce it to practice (by filing a PPA, RPA, or building and testing it) at the very time that you filed your PPA. This would be very hard to prove unless it were true. Assuming you prepare it properly, there are other advantages to using a PPA in place of actually building and testing the invention. These are: • You need not incur the expense and time usually involved in building and testing an invention in order to reduce it to practice. • You need not keep meticulous records of whatever building and testing you do accomplish. • You need not obtain witnesses. • You can be certain that your PPA will provide excellent proof of inventorship. • You will be certain that your PPA’s early filing date can be relied upon, provided your description of the invention in the PPA is legally sufficient as described below. (To rely on an actual reduction to practice by building and testing your invention, you have to keep adequate records of your building and testing activities and be prepared to prove the validity of these records in a court or in an interference.) • You can file a technical article (which you might have written anyway) as a PPA. (But remember, the article, to be adequate for a PPA, must fully disclose how to make and use the invention claimed in the RPA. As stated, the RPA must be filed within one year.) • You can file a PPA, then within one year, file an RPA, which has the practical effect of delaying examination of the RPA and extending—up to one year—your patent’s expiration date. In other words a PPA gives you a filing date that does not start your 20-year patent term. Pushing your patent monopoly term ahead a year can be profitable if your invention is ahead of its time and is likely to have its best sales 20 years from now—for example, as often happens with drugs. However, if you have built and tested your invention and made a proper record of this (see Section F3), you can also safely push your monopoly ahead by filing your RPA later. (A PPA can be converted to an RPA (Rule 53(c)(3)) but I advise against doing so since the patent will expire 20 years from the filing date of the PPA rather than 20 years from the filing date of the RPA.) • If you’ve filed an RPA and wish to restart your 20-year term, you can do so by converting the RPA to a PPA and then filing a second RPA. To make the conversion, file a petition (a simple request letter will do) with the prescribed conversion fee (see Fee Schedule in Appendix 4) within one year of the RPA’s filing date. The PPA will take the first RPA’s filing date. Then file the second RPA, also within one year of the first RPA’s filing date. The second RPA should claim the benefit of the PPA’s filing date. The second RPA will expire 20 years from its own filing date, so you’ve restarted your 20-year term about a year later, albeit at a price. • You can refer to your invention as patent pending once you’ve filed a PPA. This can be a marketing advantage, especially with companies that will not discuss any invention that is not patent pending. • Suppose you file a PPA and then, within a year, you file an RPA which claims the benefit of the PPA’s filing date. If your RPA issues as a patent it will be effective as a prior-art reference as of its PPA’s filing date. • If you are able to license or sell your invention before it is time to file a PPA, your licensee or buyer will have the opportunity to prepare and file the RPA using their own lawyers. • Preparing an RPA after you’ve prepared a PPA will give you a second opportunity to perfect your application. • If you file a PPA and thereafter make any changes in the invention, you can file additional PPAs to cover the changes. You can claim the benefit of as many PPAs as you want in any RPA(s) you file, so long as all PPAs you claim priority from were filed within a year preceding the RPA’s filing date. • You can put multiple inventions in a single PPA and claim the benefit of these in separate RPAs, provided the RPAs are filed within a year after the PPA was filed. 5. Disadvantages of the PPA Alas, every silver box seems to contain a cloud. The disadvantages of filing a PPA are as follows: 1. You may tend to forgo building and testing and lose the concomitant advantages, such as determining whether the invention is operable, practical, or useful, and having a working prototype to demonstrate to prospective manufacturers. (See Section E above.) 2. Your PPA may fail to contain a full a description of how to make and use the invention or any embodiment of it. In this case, you won’t be able to rely on the PPA’s filing date for the invention or any embodiment.
ChaPter 3 | DOCUMENTATION and the PPA | 59 Comparison of PTO’s Provisional <strong>Patent</strong> Application (PPA) With Disclosure (or Notebook) Showing Building and Testing PPA Plus. Ironclad evidence of date of reduction to practice (RTP) and inventorship Plus. No need to build and test invention Plus. No need to find or show working invention to witnesses or have them sign Plus. A technical article can be used as the PPA, provided it clearly teaches how to make and use the invention Plus. In case of an interference or other trial, no need to secure testimony of witnesses Plus. Can call invention “patent pending” Plus. If a patent issues from a regular patent application that is based upon a PPA, the patent will be considered prior art (against later-filed patent applications) as of the PPA’s filing date Plus. If the PTO finds relevant prior art that is earlier than an RPA, but not earlier than a PPA on which the RPA is based, it will usually not even cite such prior art against the RPA if it finds that the PPA clearly discloses the i nvention. Even if it cites such prior art, the applicant in the RPA can quickly antedate such art by citing the PPA. Signed and Dated + Witnessed and Dated Record of Building and Testing Negative. Record may be lost or witness may be unreliable or unavailable Negative. Must build and test invention Negative. Must find and show working invention to witnesses and have them sign Negative. A technical article cannot be used unless it clearly teaches how to make and use the invention and is signed, dated, and witnessed Negative. In case of an interference or other trial, must secure testimony of witnesses Negative. Cannot call invention “patent pending” Negative. If a regular patent application (RPA) is filed without being based upon a PPA, the actual filing date of the RPA (not the date of record) will be considered the date of the patent for prior art purposes Negative. If the PTO finds relevant prior art that is earlier than an RPA, it will cite it against the RPA. The applicant must compile evidence and submit a declaration to prove building and testing of the invention prior to the date of such prior art. Plus. Can be used by foreign inventors to establish a “U.S. date” Negative. Must prepare application or paper with full disclosure teaching how to make and use invention Negative. Must prepare cover sheet and Application Data Sheet (ADS) for PTO Negative. Must send papers and PPA cover sheet with receipt postcard to PTO or file papers online Negative. Fee required to file (see Appendix 4). (However, a PPA’s filing fee is much cheaper than an RPA’s.) Negative. The RPA—and any foreign applications you wish to file—must be filed one year from the PPA’s filing in order to obtain the benefit of such date Plus. No need to prepare full disclosure so long as record shows building and testing Plus. No need to prepare any formal papers Plus. No need to send or file any forms or papers anywhere Plus. No fee involved Plus. If the RPA is filed over a year after the date of building and testing, it will still be entitled to such date provided an unreasonable time has not elapsed and the inventor has not abandoned the invention
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N O LO ® “The best roll-up-your-
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Products & Services Books & Softwar
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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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13 14 J. The Patent Laws of Other C
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Appendixes 1 2 Abbreviations Used i
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Your Legal Companion A. You Don’t
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Your Legal COMPANION | 3 D. Should
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Your Legal COMPANION | 5 E. New Mat
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Nondisclosure Agreement 1. Parties.
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Bestsellers The Small Business Star
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Online Legal Forms Nolo offers a la
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Keep Up to Date 1 Go to Nolo.com/ne
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About the Author David Pressman is
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