細談商業資訊, 市場推廣, 開拓生意機會

商標專利

PPA Basics: The Concept Of Reduction To Practice

The provisional patent application (PPA) is an interim document designed to preserve the patent owner’s rights to the invention while in the process of determining whether to file a regular patent or not. Many inventors file it since it’s a relatively straightforward, simple and affordable way of protecting their rights over and interests in their inventions.

 

Reduction to Practice Defined

It’s the equivalent of the concept of “reduction to practice” typically manifested in two ways:

 

  • By the production of a physical embodiment of the invention, also known as actual reduction to practice. Examples include a prototype of a device, a composition of the matter, and the performance of a method to confirm its results.

 

  • By filing a patent application with the United States Patent and Trademark Office (USPTO), known as constructive reduction to practice.

 

The actual physical construction for a product or the performance of the steps for a process is meant to show others that, indeed, the subject matter being patented can do what it’s supposed to do. The concept of reduction to practice then encompasses actual demonstration, operation and testing for the invention’s actual use.

 

Importance of Reduction to Practice

Every savvy inventor knows that reduction to practice is a crucial element in establishing novelty and non-obviousness in a patent application. You, the inventor, has to provide proof that indeed you are the original inventor of the subject matter and the PPA is a strong proof.

 

The PPA is also important in establishing patent priority and, thus, rightful and legal ownership over the invention. Under U.S. patent laws, the inventor owns the patent registration rights at the time he/she reduced the invention to practice, thus, it’s important for inventors to be the first to apply the reduction to practice doctrine.

 

In contrast, most countries grant patent registration rights to the first person who files for the applicable patent.

 

The reduction to practice concept prevents other persons from stealing, borrowing, and selling prior inventions created by the original inventor even if the latter haven’t filed for a regular patent. The PPA can establish both actual and constructive reduction to practice since it must contain a description and drawings of the invention. The inventor can also include other documents to establish ownership over the invention, such as formal drawings and methods of operation.

 

If the invention’s practical utility isn’t evident, the USPTO examiner may request for a testing and demonstration. You should take it into account when filing for a PPA to establish reduction to practice on your part.

 

A good rule of thumb to remember: The less theoretical, the less abstract and the simpler the invention, the less need for showing practical utility. Brand-new technologies, for example, usually require more proof of utility while there’s little to no demonstration of utility required for improvements on existing technology.

 

資料來源: CtR智群知識產權事務所

 

申請中國商標註冊要知道這些

現今隨著經濟的飛速發展,越來越多的企業和個人都熱衷於申請註冊中國商標,但是很多人對此並不是很瞭解,那麼在申請的時候就走了不少的彎路,下面就帶大家一起來瞭解一些申請中國商標註冊要知道的事情,希望大家可以順利拿到商標。

  • 在哪裡註冊?

一是直接前往國家商標局辦事大廳提交註冊申請,二是委託經國家商標局備案的商標代理商來辦理。

  • 商標註冊需要什麼條件?

提出商標註冊申請的主體有兩種,一種是企業、事業單位或者是社會組織團體等,那麼註冊商標的時候是需要提供主體資格證明檔,並且也是需要加蓋公章的;另一種則是自然人,那麼在註冊商標的時候需要提供本人的身份證以及個體工商營業執照。

  • 申請註冊要多久?

一般來說中國商標註冊自申請提交當天起,9個月的時間為商標局審查的時間,初審通過之後會給出公告,而公告的時間是3個月,在這期間內若是沒有人提出異議的話,則代表通過並且發放商標註冊證。整個流程下來最少需要12個月的時間,若是公告期間有人提出異議的話,國家商標局則會在9個月內審查異議,最長的審核週期通常為21個月。

  • 註冊時如何選擇註冊類別和商品項目?

不同的商品歸屬的類別是不同的,一共有45個類別:其中1~34類為五金工具類、水果類的產品,而34~45類為餐飲、住宿類的服務,那麼申請人提供什麼樣的產品和服務,就註冊對應的類別即可。

  • 申請註冊後還需要繳費嗎?

商標註冊申請之後,商標局是會進入正常的審查流程,若是出現通過那麼你會接到各種電話、郵件等,但是讓你繳費的肯定是騙子。

商標註冊申請的問題先介紹到這,大家一定要弄清楚才能辦理的更加順暢。

 

資料來源: CtR智群知識產權事務所

 

The Tug-of-war Over Patent Rights Ownership Between Inventor And Employer

Who is the rightful and legal owner of an invention: The employee who invented it or his employer? The answer depends on the agreement between these parties although other factors are also considered.

 

For the inventors, the answer can mean the difference between being recognized – and possibly getting rich – for their inventions and being consigned as a mere cog in the machine. For the employers, it can also mean being recognized as a pioneer and leader in the field on one hand and being left behind by the competition on the other hand.

 

With such high stakes, which side does the law favor? Take note that patents are articulated under the U.S. Constitution (Article I, Section 8, Clause 8) and governed by the Patent Act.

 

Inventors Typically Have Patent Ownership

The general rule in the tug-of-war between inventors and employers: You, if you’re the inventor, own the patent rights to your invention created during the course of your employment. You can apply for a patent with the U.S. Patent and Trademark Office (USPTO); only a natural person, by the way, can apply for it and, thus, organizations cannot.

 

But there are exceptions to the general rule. You don’t own the patent rights under either of the following circumstances:

 

  • You signed an employment agreement with your employment wherein you assigned invention rights (the doctrine of pre-invention assignment); or
  • You were specifically hired either to create the specific invention or for your invention skills (the work-for-hire doctrine); said employment may or may not come with a written agreement.

 

In practice, either of these two exceptions to the rule nearly always applies. This means that the employers hold patent ownership to their employees’ inventions, a fact reinforced by the signed and notarized pre-invention assignment agreements at the time of the hiring. The assignment agreement typically comes as a bundle, so to speak, with other employment documents like confidentiality agreements.

 

Employers Can Have Shop Rights

Let’s assume that you retained patent ownership over your invention. Keep in mind that it isn’t an ironclad ownership either because your employer can still have shop rights. The term refers to the limited right of the employer to use your patent without paying you, either in cash or in kind.

 

Shop rights occur when you, the employee and inventor, uses your employer’s resources including the machinery, facility and network in creating your invention. The doctrine itself is flexible in its application in the real world but it typically allows your employee the use of your invention internally. Your employer can neither assign nor sell your invention to third parties; otherwise, it can be considered as infringement of patent.

 

If you’re an inventor seeking employment or already in employment, you are well-advised to consult with a patent lawyer about your employment contracts including the assignment agreement. You have to protect your inventions from infringement, even by your employers, if that’s what you want.

 

資料來源: CtR智群知識產權事務所

 

申請外觀專利保護需注意什麼事項

外觀專利指的就是對產品的形狀、圖案或者是圖形的結合,以及色彩與形狀、圖案的結合所做出來的富有美感並且適用於工業應用的新設計。大多數情況下,外觀設計的技術含量比較低,但是在進行申請保護的時候也要注意以下這些事項:

外觀相似的就可以合案申請

相似的外觀設計最好是合案申請,因為若是將相似的外觀設計進行分案申請的話,這些外觀很有可能被誤認為是雷同設計,那麼就只能提交其中的一件進行外觀專利申請了。

升級換代的話可以先不申請

產品的升級換代並不一定是要再次申請外觀設計專利的,一般來說在新產品外觀與原專利外觀差距小的情況下,它仍然在原專利的保護範圍內。若是提交新申請的話可能會由於缺少創新點而無法獲得授權,就算是獲得了授權也可能由於與原專利區別小而被他人提出無效。

打造多重的專利佈局

申請人提交的產品外觀一般都是包含多個創新帶的,那麼為了節約成本申請人可能將產品整體作為一個專利來申請。其實大家也可以將產品外觀的眾多創新點提出來分別申請,這樣就可以打造多重專利佈局,那麼就可以更好地保護產品的外觀設計了。

無必須的話不需要申請色彩保護

在可以獲得授權的情況下,外觀設計說明書中就可以避免請求色彩保護了。可能有的申請人認為請求保護色彩能夠起到更好的保護作用,其實一旦你申請了色彩保護,那麼他人可能僅僅改變產品的顏色就可以冒仿你的產品了。

專業的事情要找專業的人

雖然外觀設計專業獲得授權是比較容易的,但是確權並不是我們的最終目的,關鍵的是後續的用權和維權才是將專利轉化為價值的關鍵,而這也是專業代理機構的本職工作,那麼將專業的事交給專業的人能申請的更加順暢,保護更全面。

 

資料來源: CtR智群知識產權事務所

 

Are You The Rightful Owner Of Your Invention For Patent Application?

What would you do if your original idea was stolen by another person or group? But before you answer the question, you have to answer another question, “Do you legally own the patent rights over the product, device or item?”

 

Granted by the USPTO

Everybody has the right to create things. But keep in mind that merely creating a thing doesn’t confer legal rights including ownership over it, even when others have profited from it. You must actually have a valid patent over the subject matter, whether it’s a process or a product.

 

Patents are rights of ownership granted by the United States government, specifically the U.S. Patent and Trademark Office (USPTO) to inventors. The patents are intended to exclude others from making, using, and selling, even importing, the particular inventions without the inventors’ express permission. In case of infringement, the aggrieved inventor can file an infringement lawsuit.

 

If you haven’t submitted your patent application or you haven’t been granted a full patent for the subject matter, then you will likely not be considered as its legal and rightful owner. You can, however, apply for a provisional patent but even it has its limitations so we suggest getting a full patent over your invention.

 

Inventorship and Ownership Are Different

There are also instances that the inventor and original holder of the patent isn’t considered as the owner of the patent. This is because the concepts of inventorship and ownership are different under patent law.

 

You, the inventor, may be listed on the patent application filed with the USPTO but you may not be considered as its current valid owner. You may have relinquished your rights over it, a case that can happen when you work for a company and you created the invention while you were its employee at the time. In this case, you cannot sue for patent infringement since the patent is usually owned by the company.

 

If you were directly paid by another person or group to create an original invention, you may or may not own the resulting patent. You have to double check the agreement before signing it, especially if you want to own the patent while the other party has certain legal rights over the resulting product.

 

And then there’s the matter of being a solo inventor or a joint inventor of a patented idea or thing. If you came up with the idea or created the product completely on your own, then you are considered as a solo inventor. You shouldn’t be anybody’s employee, too.

 

If the idea or thing was created by two or more people, then they are joint owners of the patent. The names of all the inventors can be listed on the patent application and, in the absence of an agreement to the contrary, every inventor own a pro-rated and undivided interest in the invention.

 

資料來源: CtR智群知識產權事務所

 

怎麼申請中國發明專利

發明專利是專利的一種重要類型,它是技術含量、科技含量最高的專利類型。很多沒有接觸過專利的人對申請專利都是很陌生的,而中國專利局就是申請專利的專業機構。那麼接下來我們詳細說明一下怎麼申請中國發明專利。

 

申請發明專利的流程應該是這樣的:

首先需要申請人提供原始的技術資料和個人或者單位的資訊,然後委託專利代理機構來簽訂委託代理協定,也就是撰寫一份符合專利法要求的專利申請檔。

之後向國家專利局提交該專利申請檔,取得專利申請號碼之後按照規定繳納專利申請費即可。

然後就進入初步審查了,審查合格之後在申請日後的18個月,將會在專利公報或者是網站上公開其申請。當然也可以根據申請人的要求,在申請日起的15個月內隨時要求提前公開。

再接著就是進入實質審查的階段,申請人在申請日起的3年內可以隨時向專利局提起實審,當然也可以在該專利申請公開之後提起實審,提起實審之後就要按規定來繳納專利實審費用了。

最後就是經過實審審查之後,若是該專利符合發明的實用性、創造性以及新穎性,國家都會給予授權的。那麼申請人再按照規定來繳納專利申請維持費、印刷費、當年年費以及證書工本費等,就可以取得專利申請證書了。

申請發明專利的流程就是這樣的,為了可以順利地通過那麼在申請的時候也要準備好技術材料,比如權利要求書、說明書摘要,如果有需要的話還要附圖說明。

申請中國發明專利的時間大約在兩年半以上,取得專利之後每年也要按規定繳納年費。此外發明專利的保護期限是20年,到期之後是不能續展的。

 

資料來源: CtR智群知識產權事務所

 

申請註冊歐盟商標的幾個注意事項

歐盟商標指的就是根據歐共體規定的條件而獲得註冊的商標,這樣的商標在歐盟範圍內都是有效的,可以用來識別和區分歐共體內的商品和服務。申請註冊歐盟商標是需要向歐盟商標局或者是歐盟成員國的商標局提出申請,接下來我們就來看看註冊歐盟商標要注意的幾個事項。

  • 如何理解歐盟商標的統一性?
    歐盟商標以及其註冊申請在整個歐盟是有效的,商標的申請以及相應的註冊都會自動延伸到25個成員國,因此將地域保護限定在某幾個成員國之間是不現實的。並且歐盟商標在註冊的時候會由歐共體內部市場協調局進行控制註冊,也就是說是不需要各個國家的工業產權局介入的。
  • 歐盟商標能超越單獨成員國的商標嗎?

歐盟商標註冊體系對其成員國的商標註冊體系是沒有任何影響,包括比利時、荷蘭、盧森堡等體系。企業是可以自由選擇,無論是單獨成員國商標還是歐盟商標,都可以根據自己的需要來選擇註冊。

  • 什麼樣的標記可以被註冊為歐盟商標?

歐盟商標是可以包含任何可以使用的圖表來代表的標記,尤其是文字,也包括人名、圖案、字母、數位、商品形狀或其包裝外觀等等,只要這些標記可以將一種商品或者是服務用途,與其他種類的用途分開即可。

所以以下的標記都是可以在註冊商標的時候使用的:

  • 包括字母、數位或是字母、數位和文字的組合形式的文字標記;
  • 含有或者不含有文字的圖形標記;
  • 彩色圖形標記;
  • 顏色或者是多種顏色的組合;
  • 聲音標記;
  • 三維立體標記。

以上幾點就是註冊歐盟商標的幾個注意事項,大家在註冊申請之前一定要瞭解清楚。

 

資料來源: CtR智群知識產權事務所

 

Meeting the Non-obviousness Requirement In Patent Applications

Every inventor worth his salt should familiarize himself with the non-obviousness requirement in patent applications. Otherwise, even a novel and original invention will not be granted a patent by the United States Patent and Trademark Office (USPTO). But what exactly does the USPTO mean by non-obviousness and how can you meet it?

 

But first, we have to emphasize that while novelty and non-obviousness are different in many ways, the two terms often overlap in a practical sense. The reason for it is that both can be measured in terms of the absence of prior art.

 

What Makes an Invention Non-obvious?

Unfortunately, the standards for determining the obviousness and non-obviousness of inventions are as clear as mud. The USPTO patent examiners – and the judges in patent litigations, for that matter – have plenty of leeway in making related decisions, a current reality that inventors should be aware of.

 

If you’re an inventor, keep in mind that it doesn’t necessarily demand genius-like craftsmanship, originality, and vision to create a non-obvious design. In many cases, it only requires the extraordinary ability to visualize ordinary things in a new or different manner.

 

There are times when combining things is easily apparent and there are times when it isn’t. The requirement of obviousness then becomes trickier than it sounds, especially as obviousness itself is both a subjective and objective (i.e., fact-based) inquiry.

 

But there’s a way to determine if your invention meets the non-obviousness requirement. Basically, an invention can be considered as obvious when other persons knowledgeable about the field where it belongs will look at it and consider it to be generally known. The known aspect isn’t exactly known per se but will be known if several references are combined.

 

How Can Non-obviousness Be Demonstrated?

Keep in mind that the inventor has the burden of proof, so to speak, in proving the non-obviousness of his invention. This can be done in several ways including the following:

 

  • Using a familiar shape in an unfamiliar manner
  • Making slight to significant changes to an existing design thereby creating a striking visual effect that others haven’t done before
  • Omitting certain elements generally associated with similar designs
  • Juxtaposing specific elements thereby creating an unexpected statement, whether visual or auditory

 

There are other ways to meet the non-obviousness test, too. If your design has been or continues to be a commercial success; it has unexpected visual appearance; it has been copied by others; it has been praised for its originality by others in the field where its utility is evident; it was copied by others but they were unsuccessful at generating the same results as the invention; or it was created when others said it couldn’t be done.

 

Do these concepts make for more confusion? If you answered yes, then you should consider hiring a patent agent or lawyer or agent with a comprehensive experience in meeting the five requirements of patent approval.

 

資料來源: CtR智群知識產權事務所

 

如何申請註冊歐盟專利?

近些年申請註冊歐盟專利的企業越來越多,很多企業都走出了國門、走向世界。而且不少的企業都不只局限於單一申請中國專利,可以說申請國外專利已經成了技術出口的一把保護傘,接下來我們就一起來看看如何申請註冊歐盟專利。

  • 提出申請

申請可以使用英語、德語和法語這三種語言任何其一,向歐盟專利局提出專利申請。在提出申請之後的一個月左右,歐洲專利局會發出通知。

  • 歐洲專利局檢索

在提交專利申請的時候是必須要提出檢索請求,並且也要繳納檢索費用。自申請日起的兩年左右,申請人將會收到由歐洲專利局出具的檢索報告,同時也會附上一份對你的申請可專利性的初步審查意見書。

  • 公佈專利申請

歐洲專利將會在自申請日起的18個月內公佈專利申請。

  • 提出實質審查請求和實質審查

申請人應該在申請的同時,或者是在歐專局的檢索報告公佈之日起,6個月內提出實質審查請求。在該審查請求提出來的同時,是需要從歐洲成員國中指定一個具體的成員國,並且也要繳納審查費和指定費。

  • 歐洲專利授權

當審查通過之後歐洲專利局會發出授權通知的影本,申請人需要選擇同一授權文本並且允許申請人進入授權程式,或者對文本或權利要求進行修改。與此同時也應該交付授權費用並且遞交權利要求上的其他兩個語種的翻譯譯文。

  • 專利申請通過

一般申請人在收到專利授權通知之後,申請人就必須決定在制定國名單中選擇一個生效國,然後通知歐洲專利局該專利在哪些國家生效。確定生效國之後根據規定需要將專利的全部內容進行翻譯,並且交給該生效國以便專利生效。

整個歐盟專利的申請時間大約需要3-5年,專利的有效期為自申請之日起的20年。

 

資料來源: CtR智群知識產權事務所

 

Why Hire An Attorney For Your Initial U.S. Trademark Application?

Filing a trademark application isn’t for the faint-hearted, so to speak, because of the time, energy and effort involved in understanding the trademark law, meeting the requirements of the United States Patent and Trademark Office (USPTO), and dealing with the subsequent actions (e.g., issuance of Office Action). For this reason, you should seriously consider hiring an attorney to take care of these matters in your behalf.

 

What can an experienced lawyer, particularly one with extensive experience in trademark laws, do for you?

 

Provide Appropriate Legal Advice

Of course, you can file the application on your own and request the USPTO examining attorney to provide tips that will expedite your application. But the USPTO attorney cannot provide legal advice even if he wants to because otherwise it will be a conflict of interest.

 

The trademark attorney, in contrast, will provide legal advice regarding your application and its related issues. You can get answers to questions like, “Is the mark protectable by the trademark laws? Are the class of products and/or services that the marks apply to identifiable? Are you able to take appropriate action when the USPTO refuses to register the mark?”

 

Think of your attorney as your main man in ensuring that your mark becomes registered and protected from infringement by others.

 

Conduct Searches on the Database

Again, you can search the state and federal databases for similar trademarks as the mark you’re seeking registration for. But it’s such a time-consuming process that you likely won’t have the time and energy for, perhaps not even the patience. Besides, you will likely have other business matters to attend to.

 

With an attorney on board, you can delegate the task to the professional. Your attorney will search the USPTO database of registered trademarks at the federal level, as well as other databases including the state registration database and the common law unregistered trademarks database. The comprehensive search is a must because even non-registered trademarks similar to your mark and used for selling products and/or services related to yours may well prevent you from registering, using and profiting from your mark, no matter if you think it was your original idea.

 

Protect Your Trademark Rights

Your attorney can also provide information that will deepen your understanding of your rights and responsibilities as a trademark owner. You will also be provided with relevant advice about the best ways to monitor and enforce your rights and responsibilities, especially in terms of others infringing on your mark. You should also remember that you may also be charged of infringing on other people’s trademarks and your attorney can provide legal assistance on this matter.

 

The crucial role of your attorney doesn’t stop with the initial application. You can also rely on him or her for meeting the registration maintenance documents, which should be filed on a regular basis. You can then maintain ownership over your mark, a must if you want to continue profiting from it.

 

資料來源: CtR智群知識產權事務所

 

文章分類
bizformation chinese web solution website redesign hkwebdesign