[starman]

If someone claims to have a "patent pending", yet there's nothing in the US Patent Office database with the description of the patent listed, could a company truly claim "patent pending"?

Mike

[f1000]

Originally posted by starman:
If someone claims to have a "patent pending", yet there's nothing in the US Patent Office database with the description of the patent listed, could a company truly claim "patent pending"?

Mike

Someone who has filed a provisional patent can claim "patent pending" status. As far as I know, a provisional patent is kept confidential for the entire 12 month period by the USPTO. Once an actual non-provisional patent has been filed, a patent application will usually become public after a certain number of months:

"Most patent applications filed on or after November 29, 2000, will be published 18 months after the filing date of the application, or any earlier filing date relied upon under Title 35, United States Code. Otherwise, all patent applications are maintained in the strictest confidence until the patent is issued or the application is published. After the application has been published, however, a member of the public may request a copy of the application file. After the patent is issued, the Office file containing the application and all correspondence leading up to issuance of the patent is made available in the Files Information Unit for inspection by anyone, and copies of these files may be purchased from the Office."

http://www.uspto.gov/web/offices/pac...eral/faq.htm#2

[starman]

Um, ok...so if I apply for one, and someone else appies for the SAME one around the same time, what happens?

Mike

[f1000]

That depends on a lot of things. First off, how good are your records? Did you document your entire invention process? Secondly, when was your date of conception (i.e., when did you first invent your idea)? All things being the same, the inventor who can prove that he conceived of the idea first and then diligently reduced it to practice will persevere.

[chabig]

Diligence is important. Even if you can prove a date of conception before his, he will prevail if he diligently worked to reduce it to practice and you didn't.

Do you have reason to believe that someone else is going to file a patent application for something you invented first?

[ghporter]

I thought about capsulizing the process of a patent application submission, but why not point you to all the information you could need? Here's the U.S. Patent Office's official web site, with a wonderful FAQ to start your investigations with.

It's my understanding that, as f1000 says, your documentation is crucial. If you "invented" something three years ago and documented it in enough detail to fully describe it then, then it doesn't matter if you submit your application after someone else who "invented" the same thing AFTER you did. This, however, often comes down to lawyers arguing about the level of detail in each inventor's documentation... Sad but true.

Good luck.

[Jan Van Boghout]

In Belgian patent law the originality requirement for a patent will always go to the person that filed for the patent first, so you might be out of luck. I don't know in what areas US patenting is different.

[chabig]

In the United States, the patent goes to the person who was first to INVENT, while most other countries issue the patent to the person who was first to FILE. That's why documentation is so important.

Chris

[f1000]

Originally posted by chabig:
In the United States, the patent goes to the person who was first to INVENT, while most other countries issue the patent to the person who was first to FILE. That's why documentation is so important.

Chris

This is roughly true; however, being the first to invent does not necessarily trump being the first to file. Documenting an invention without publishing, advertising, selling, or patenting it will help to maintain the invention as a trade secret, but trade secrets are not equal to patents. A court might favor a patent app that was late by a few months or years over an earlier app, but there must be good justification for the delay (such as time needed to reduce the idea to practice).

Don't apply for a utility patent until you're fairly certain that the device, as described in the patent, will work. A utility patent cannot be awarded on devices that can't be built by someone reasonably skilled in the art (e.g., perpetual motion machines). If someone proves that your patent is unworkable, he can have your patent voided. This is why rushing to patent first can be unwise.

Again, if you're working as quickly as possible and documenting everything appropriately, you shouldn’t worry too much about having someone file slightly earlier than you...you will still have a very good chance of winning a strong patent. Remember, patents are for solutions, not ideas. Anybody can conceive of a flying car, but the USPTO will only grant patents to those who can explain how to build one.