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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
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
