[Jewelry making - Article 00764] - Re: [Orchid] Patent Process

[James White]

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>         I recommend that first you try to obtain a provisional patent
>     (AKA patent pending).  Thanks to former president Clinton who
>     pushed for it, a small entity such as ourselves can now obtain a
>     provisional patent for only $80. 

    There really is no such thing as a "provisional patent." What you
    can do is file a "Provisional Application for Patent." It is a
    provisional APPLICATION. And it is stone cold dead in 12 months if
    you don't file the full application within that timeframe. But worse,
    while it does give you temporary "patent pending" status it gives you
    absolutely no rights to take anyone to court. All it effectively does
    is give you what is called a priority date on whatever in your
    provisional application is novel and non-obvious AND is enablingly
    described for one of ordinary skill in the art in your write-up and
    drawings. For many people it turns out that what they file as a
    Provisional Application they don't even get a priority date because
    nothing in their application fits all the above criteria. 

    In fact non-knowledgeable people often file Provisional Applications
    then use the false sense of security to disclose publicly their
    invention and thereby trip triggers that jeopardize any rights they
    might have to both US and non-US patents. Public disclosure of
    something that is NOT clearly explained and shown in the provisional
    application can render it impossible to get a valid patent outside
    the US and Canada which both have 1 year grace periods in which to
    adequately describe what is claimed in the eventual full patent
    application. All other countries are what is called "absolute
    novelty" countries which means that no public disclosure (or sale)
    anywhere in the world can occur before adequate disclosure occurs
    within a patent application (either provisional or full). 

    Also Provisional Applications are NEVER "approved" by the USPTO
    because they are never examined. They are given a cursory glance to
    see if it appears that all parts are there to make it a legitimate
    application but there is NO evaluation on the merits to ensure that.
    For example, if no drawings are included the PTO may (or may not!)
    send a strongly worded form letter suggesting you supply drawings "if
    they are useful in understanding the invention." But there is no
    requirement that drawings be there or sent---in effect each applicant
    makes their own decision at the time of Provisional Application
    filing as to what is adequate. It is not till later when the full
    application is examined -- or later still when an issued patent is
    taken to court -- that the Provisional Application is perhaps
    evaluated. And that is when mistakes with the Provisional Application
    can bite you, even to the point of invalidating an issued
    patent---which has happened. 

    Still, I strongly recommend Provisional Application use when they
    are used knowledgeably. Thinking that $80 gets you protection is NOT
    knowledgeable use. In fact what it usually is is a golden opportunity
    for an "honest" patent attorney or agent to put some hapless inventor
    into a vice and turn the screw 2-3 months before the 12 month full
    filing deadline will be passed. 

James E. White
Inventor, Marketer, and Author of "Will It Sell? How to Determine If
Your Invention Is Profitably Marketable (Before Wasting Money on a
Patent)"  Info Sites:   www.willitsell.com    www.inventorhome.com,
www.idearights.com www.taletyano.com www.booksforinventors.com

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