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繁體中文 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
Can You Patent Your Invention?
The short answer: It depends on whether your invention meets the requirements stated by the Patent and Trademark Office. Not all patent applications will be recognized or registered even if the inventors insist otherwise. Not even well-known inventors with dozens, perhaps hundreds, of registered patents are assured that their pending applications will pass the stringent process.
What then can be patented? Let’s take a look at the factors that affect the success of your patent application, among other matters.
Four Requirements
According to the U.S. patent law, any individual who discovers, makes or invents any novel and useful machine, process, composition of matter, manufacture, or any novel and useful improvement on them may file for a patent. From the definition, the USPTO will grant a patent right if and when these four requirements are met:
- The subject matter, such as a method or a machinery, should be patentable.
- It must be new or novel.
- It must have some usefulness or utility.
- It must not be obvious.
You have to carefully consider whether you, indeed, have a patentable subject matter before filing its patent application. You may or may not be granted the patent but you likely won’t be given a refund if it isn’t granted – and the patent process is costly, too.
In terms of novelty, the invention should be new in the sense that it must be different from the existing knowledge in the public domain, in published applications, and from prior patents, among others; these are known as prior art.
The utility requirement is met by showing proof that the invention can physically accomplish something. In other words, it should work as the inventor intended or it produces actual results. In reality, the USPTO isn’t likely to challenge the patent based on utility unless its underlying logic has serious flaws. Exceptions, such as on design patents that don’t need to meet the utility requirement, apply.
Concrete Evidence Required
While your idea seems novel, useful and unobvious, it cannot be protected by a patent. Instead, your idea must be embodied in one or more of these concrete manifestations, among others:
- A method or a process, such as a new process for making concrete
- A machine or machinery, typically with circuitry and/or moving parts (e.g., gears)
- A manufactured item that accomplished a result with little to no moving parts
- An asexually reproduced new plan variety
- A new composition of matter, such as a new drug
Does your idea fall into one of these categories? You can’t be too sure even then because there are subject matters that are simply beyond the scope of patent laws. These include naturally-occurring substances (i.e., these cannot be invented); mathematical formulas (i.e., these may be copyrighted instead); laws of nature (i.e., man’s laws doesn’t apply to them); and processes that can be entirely performed with the human body (e.g., fool-proof technique for shooting a ball from the 3-point line).
資料來源: CtR智群知識產權事務所
