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Messages - Brad

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1
Patent Questions and Advice / Re: Continuation applications
« on: June 01, 2021, 02:33:04 PM »
Each continuation could be its own separate patent with a separate patent number so I would first look at each one to see if it is truly a valid and issued patent and then if so look at each claim from each of the different continuations plus the original.


2
This type of question cannot be answered properly over the internet

The type of advice you are looking for is called a "freedom to operate opinion" or sometimes called a "clearance opinion".  They can be quite expensive as attorneys and law firms take on a lot of risk and liability telling you that you are free and clear to do something, if they are wrong, they could be in a lot of trouble.   

In general, in order to violate a claim you would have to copy every limitation in that claim. 

Adding in extra features to your product would not help.



3
There are a couple of items here:

1) Having a patent does not mean you are free and clear to make or sell the app.  Here is a post I wrote on this:
https://patentfile.org/your-patent-is-not-a-green-light-to-sell-a-product/

2) If your goal is to just prevent others from patenting the same thing, the cheapest way to do that is to publish your app and details about it (for example you could blog about it on medium.com or github).   Your public work could then be used to reject anyone else's patent if they later tried to patent the same thing.

3) I really only know about US patent strategy but my understanding is that apps are just about impossible to patent outside of the US and even in the US they are extremely hard to get approved (usually less than 30% chance of approval unless the app solves a very technical problem).



4
Prior art searching should always be international.   In order to get a patent you must be the first one in the entire world to invent that and any foreign documents the patent examiner can find can and will be used to reject your patent.

If you file a patent in one country you only have one year (12 months) to file in other countries.  If you miss that window it would be too late to try and later file in different countries. 


5
No.  In fact, many successful apps and software programs don't have any patents at all. 

Ideally you should identify the core 2-3 unique processes your software app does and that would be the focus of your patent.  If you had a patent budget of $500,000+ per year which is probably what Tinder has then you can most certainly file a new patent on every little tweak you think of but that is not practical for most of us.


Software Patent Warnings:

You first need to determine why you think you need a patent.  Do you really think you are going to get a broad and strong patent approved in the social media space right now?  That is doubtful.   

If you do get your app approved, do you have the $100,000 it will likely cost to defend your app if it gets challenged?  If your app still makes it through that challenge, do you have the $1 million+ to spend enforcing your software app against companies like Tinder? 

After you add up all the costs and risk for filing a patent, what is your return on investment and how are your going to justify the expense of filing and defending your patent?

I am not trying to scare you away from filing a patent, rather, people should look at it from a cost-benefit perspective and often times the costs are greater than the perceived benefits when it comes to certain types of mobile app type patents.




6
Patent Questions and Advice / Re: Improvement of a patent in force
« on: March 17, 2021, 01:55:06 PM »
It is impossible to say without spending a lot of time and money researching their patents and your idea in detail.  Even after spending all that time and money it would still just be a "guess" or estimate on how likely you may be infringing their work.

In general you cannot make or sell a product that is still using a patented process or component even if you think are are improving on it.

*The type of opinion you are looking for is called a "freedom to operate" legal opinion and is not something we provide.  You should really speak with a patent attorney with this type of experience and registered in your area.

7
I have seen agreements where universities sometimes say they will pay inventors from another university but usually that is only if there is a federal (US) grant.

Otherwise, it is most common for each university or company to only pay their own inventors.



8
Yes I think so.  It is rare for most companies to share income with inventors (although this is standard for universities, government labs, and research based organizations).

If the inventors and companies enter into their own agreements to share income that should be possible. 

9
The only possible thing I can think of is if there is federal funding involved with the creation of the invention then under federal guidelines (Bayh Dole Act) the inventors are supposed to get a portion of income but I am not fully sure if that applies to inventors from company B if only company A is licensing the patent all by themselves.  Further research would have to be done on that.

If there is no grant or federal funding than I am not aware of any rule that says company A must share income with inventors from company B.




10
Hi Paul,

I removed your question as I don't want your words to come back and bite you later if you ever found yourself trying to defend this patent.

In general, it would be best if we can get a patent approved on the new material itself.  If there is nothing special about the material itself and rather it is just the process used to make the material then we can sometimes get a patent on that as long as the process is not routine.  For example, if your process is using a new step or a new ingredient that is not commonly found in similar processes than it may have a chance of getting approved but if you are taking a routine type process used in other fields but for a similar purpose and applying that to your field these are very difficult patents to get approved.

Is it worth it?  That depends on your business goals.  Some people like to file a patent so they can tell their investors they filed a patent and it may even scare off some of your competition for awhile letting you take the lead in the market.  In that case maybe filing a patent is worth it even though it has a low chance of approval.   

11
Hi Kate,

Yes - I usually let people upgrade and just pay the difference in cost.  The only time I would say no to this is if I was overbooked with larger projects or if your PPA was too long (over 20 pages).

Thanks.


12

Oh I see, thanks but does it make a difference if the found art is also mine?
Can I cancel the application that was published in March 2020 and would that make its addition to prior art at the point of its publication or at the point of its filing by me?


That makes it more complicated and you would have to carefully consider the law but in general if the publication was after your filing date or within 12 months of your filing date you may be okay.  https://www.law.cornell.edu/uscode/text/35/102

13
The patent application that published in March 2020 was filed before that so the examiner will look at the filing date which was before yours.

14
Patent Questions and Advice / Re: Overcoming prior art in patent
« on: January 16, 2021, 08:53:39 AM »
If it is shown clearly in your figures you can point that out to the examiner as support for amending your claims.

15
Not in the US but there may be something in Europe or WIPO that I am not aware of.

In the US unpublished applications (including their titles) are kept secret. 

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