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Topic: Patent an improvement to an existing process (Read 8938 times) |
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JimIvey
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Re: Patent an improvement to an existing process
« Reply #5 on: May 12th, 2004, 2:57pm » |
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on May 12th, 2004, 12:41pm, Kelley Bachman wrote:| So, I can try to patent a very broad process which may include (because of it's breadth) some specific processes that have already been made public? |
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No. Well, you can try.
on May 12th, 2004, 12:41pm, Kelley Bachman wrote:| Do I have to specifically exclude from my claims any process which might generally be related to previously publicised processes? |
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Yes.
on May 12th, 2004, 12:41pm, Kelley Bachman wrote:Can a patent be applied for, using broad and explicit claims, even if the claims overlap the previous 'reason unknown' steps? This is very complicated and I am having a hard time trying to explain exactly what I mean, but I think you'll get the gist.
I've read the patents which apply to the area that I am interested in, and the majority of them are very simplistic and spartan, yet were granted by the USPTO. I am hopeful that I will be granted a patent as well. |
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You have to understand that there are two basic and separate parts of a patent: the specification (drawings, description, etc.) and the claims. The specification adds to the whole of public knowledge. The claims specify the breadth and coverage of legal rights associated with a patent.
To get a patent, you only need to add some non-obvious thing to the whole of public knowledge. You do not need to establish that your invention doesn't infringe any earlier patents.
The relevant comparison is between the prior specification and your claims.
If your invention infringes valid and enforceable claims of another patent, that restricts your ability to practice your invention but does not, by itself, affect the validity of your own patent.
A basic and fundamental patent truth: patents don't give you the right to practice your invention; they only give you the right to exclude others from practicing your invention.
I hope that helps.
Regards.
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| « Last Edit: May 13th, 2004, 8:23am by JimIvey » |
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James D. Ivey
Law Offices of James D. Ivey
http://www.iveylaw.com
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M. Arthur Auslander
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I love YaBB 1G - SP1!
Posts: 541
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Re: Patent an improvement to an existing process
« Reply #6 on: May 13th, 2004, 4:32am » |
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Dear Kelley,
The ability to get a good or even a worthless patent depend on the state of the art too. I star with a Reality Check® even before a patent search.
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M. Arthur Auslander
Auslander & Thomas-Intellectual Property Law
3008 Johnson Ave., New York, NY 10463
7185430266, aus@auslander.com
Reality Check® ELAINE's Workshop®
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Kelley Bachman
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Re: Patent an improvement to an existing process
« Reply #7 on: May 13th, 2004, 9:38am » |
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Once again, thank you for your prompt replies.
The generous amount of info you have provided definately eases my mind...as to whether I should even bother applying.
I have been doing a lot of research regarding patent applications; specifications, claims, and drawings and feel that I would like to give it a shot.
Yes, the only purpose of securing a patent in this case is to keep anyone else from practicing the invention. But, we do realize that obtaining a patent could potentially harm us in the long run as it will then allow others to learn how it works and potentially make some adjustments and get themselves a patent. We have entertained the idea of just keeping it a "trade seceret" but like I said, some of the info has already been made public.
If we wanted go the trade seceret route, do we just start that immediately concerning this new discovery? And you can't apply the TS to any previous info that has been made public?
Patent or Trade Seceret? Hmmm.
Thanks again! It is so refreshing to know that there are decent, knowledgable people out there who are willing to help out poor folk like myself who can't afford the services of a lawyer.
Kelley
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JimIvey
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Posts: 2584
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Re: Patent an improvement to an existing process
« Reply #8 on: May 13th, 2004, 11:42am » |
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There's a forum here for trade secret. You might want to peek over there. I tried participating in it once, but I only have time for this one.
Here are a few tips.
First, the law clearly favors patents over trade secrets. If you go with trade secrets and someone else comes along and patents it, you're not permitted to infringe that patent without their permission. So, going with trade secret, you take that risk.
Of course, there's a legislative cut-out for "business methods" in which case prior trade secret usage of "business methods" is a safe harbor from patent infringement. However, the law doesn't say what a "business method" is and it doesn't explain why this nebulous category of invention deserves an exception to the whole of patent law. However, in any government by the people, of the people, for the people, you're going to have inherent human fallibility.
Lastly, you don't "apply" for trade secrets. You simply protect them as secrets. Someone else can lay this out better than me, but I'll get it started. A trade secret is something that (i) has business value ("trade") and (ii) is not generally known ("secret"). The way you keep it not generally known is to only tell it to people under a promise to keep your secret. There are a number of practices you can implement to protect your secret.
The value of trade secrets is that they last as long as you can keep them secret. The downside is that they only last as long as you can keep them secret. If someone blabs, your IP is gone. If no one blabs, your IP can last forever.
That's about all I have time for. I hope it helps.
Regards.
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James D. Ivey
Law Offices of James D. Ivey
http://www.iveylaw.com
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M. Arthur Auslander
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I love YaBB 1G - SP1!
Posts: 541
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Re: Patent an improvement to an existing process
« Reply #9 on: May 13th, 2004, 4:58pm » |
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Dear Kelley,
It usually takes even a patent lawyer a couple of years of study to learn how to write a GOOD claim that might give some value to the patent or the invention.
Just because you get a patent does not mean that the invention is protected. A good claim to a good specification is the only way. If the state of the art is not right, even that won't help.
If you have anything of value, the odds are that your patent will give away the art unprotected.
Your chances may be about equal to the one in ten thousand that use the scam artists who get back more than they pay.
Yes, I have met non patent lawyers that can write GOOD patents. They are more rare than a good patent. Edison didn't write his patent applications.
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| « Last Edit: May 13th, 2004, 5:05pm by M. Arthur Auslander » |
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M. Arthur Auslander
Auslander & Thomas-Intellectual Property Law
3008 Johnson Ave., New York, NY 10463
7185430266, aus@auslander.com
Reality Check® ELAINE's Workshop®
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