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Messages - Brad

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Patent Questions and Advice / Re: Patent Prior art
« on: June 22, 2017, 05:42:12 AM »
You can try to challenge their patent in something called Post Grant proceeding:

You may also be able to prove that you invented and were selling the product before they filed their patent which may cause their patent to be invalidated.

Patent Questions and Advice / Re: 12 month grace period in the USA ?
« on: June 22, 2017, 05:39:47 AM »
Yes.  The inventor has a 12 month grace period to file their patent in the USPTO.  This is not true in most other countries.

There should be a form you fill out in the middle of this page:

If you don't see it, please send me an email or contact me through this page:

Patent Questions and Advice / Re: Who determines obviousness ?
« on: June 17, 2017, 06:57:59 AM »
Usually its the examiner who has to find some other patent or document that shows each piece of your invention.  So in your example the examiner would have to find at least one other patent or reference that teaches something similar to a nail and at least one patent or other reference that teaches hitting something with a sharp tip is known to cause that item to go into a surface.     The examiner would then have to make a statement that it would be obvious to combine the two and that it would be reasonable for someone to think you would combine the two to arrive at your invention.

Does the patenting of an invention in one country prevent the patenting of the same invention
by others in other countries because the 'novelty' is no longer present ?
Yes.  If you have a patent in country A nobody else should be able to patent the same thing in Country B (or any other country that I am aware of).

Is patenting in many countries simply to allow prosecution for infringement in a particular country
inasmuch as you can only prosecute in a country where you hold the patent ?
That is one reason.  There are business reasons too.  For example, if you were a USA company that has a new drug you may want to license the rights to sell that drug in Japan to a Japanese drug company.  You could not do that license without first having a patent in Japan so that patent serves as a tool to force a license in different parts of the world.

This is something that can be negotiated.   Generally speaking usually the licensee has the right (but is not required) to prosecute infringers.   I have never seen a license that requires or forces one party to go after infringers as that could cost millions and it would be unwise and risky for someone to pre-commit to that expense and risk in an agreement.

(this is not legal advice, just my business opinion based on license agreements I have seen)

Patent Questions and Advice / Re: Priority date gamble.
« on: June 14, 2017, 01:50:04 PM »
No this would not be a gamble as the application which was submitted on June 9 would not be treated as a prior art as a prior art would be only something that is published prior to the priority date of the application. Hence, while the application was filed one day prior to yours, since it was not published before your priority date, it cannot be treated as a prior art hence this would not be a gamble.

Trust this helps.

Sorry this is not correct.  See 102 (A) (2) which says:

(a) NOVELTY; PRIOR ART.—A person shall be entitled to a patent unless—
(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention; or
(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.

That is a hard questions to answer accurately without knowing what the pieces are.   As long as the different pieces you are using are not found in similar inventions used for a similar purposes the combination of them should be allowable under patent laws. 

Citation field will show you similar patents.  If this is what you want, that is okay.

Check out patent family tree on places like:

There are many expensive (paid) software applications that can do this for you.

Patent Questions and Advice / Re: Priority date gamble.
« on: June 12, 2017, 10:52:49 AM »
Yes.  This is part of the risk/gamble.   Usually however you will find the two inventions are not 100% the same and there may be one or two little things you are doing differently from the other patent application so you may still be able to get your own patent approved but the focus would have to be on those differences.

Great questions:

This post I wrote should answer most of your questions in more detail but I will try to briefly answer each one:

1.)  If I filed a new (2nd) Provisional before the 1st Provisional expires on June 22? --What would happen?
You would have a brand new provisional and since you cannot link two provisionals together, your new provisional would have a new 2017 filing date in the eyes of the patent examiner.   This means that if someone else filed their patent on July 1, 2016, their application would now pre-date yours and potentially block your application from being allowed.
(note this is rare and many people file new provisionals all the time but you should be aware of the risks)

2.) Would the new (2nd) Provisional give me another 12 months to file a non-provisional ?
3.) or would the new 2nd Provisional be negated on the July 10, 2017, the one year anniversary date of my making my invention public by the publishing of the website last year?  (I understand that if you file any additional Provisionals that you lose the priority any previous one.)
As long as you file your new provisional before July 10, 2017 you would still have the 12 months to file your non-provisional. 

4.) If I let my provisional lapse without doing anything, would someone else who came up with my same idea be able to get a patent on it? or would my website making the information public be considered prior art and make any future patent impossible? (even though a non-provisional patent was ever even applied for.)
If someone else tried to file a patent on the same idea after July 10, 2016, your website should be able to serve as "prior art" to stop their patent from being allowed.   

If you are at the provisional stage I have never seen anyone change inventorship unless there was some huge reason or urgency.   Usually there are no claims in provisionals so inventorship is not really an issue yet.

Most times we just re-do the claims and re-do the inventorship at the time we file the full non-provisional. 

The inventors list can always be updated from time to time.   Remember that inventors should only be the ones who contributed to the "claims" so before you can even determine who the inventors are, you should have your claims for the non-provisional written out.   Once you have the claims written, you go through each claim and whoever contributed to at least one claim should be added as an inventor.

Patent Questions and Advice / Re: Patents of family
« on: May 29, 2017, 05:28:48 AM »
Not really.

Patents only last for 20 years from the date they were filed and then they are free and available to the public to use.   So if you have an inventor from 100+ years ago there would be no valid patents left for you to use. 

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