1. How can we determine if our core product is patentable?

Having a patentability search conducted and a patentability opinion written based upon the results of the search will provide a reasonable analysis of your chances of obtaining patent protection. This process is relatively inexpensive and is designed to provide a reasonable basis for making the decision of whether or not to peruse a patent by drafting and filing a utility application.

In addition, this search can be expanded to include an analysis of the patents held by others in the space and a review of their claims to identify any potential infringement concerns. Oftentimes, when a patent of concern is identified early, it can be avoided through a creative design process or some other means.

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2. Do I have to apply for a patent right away?

There are statutory bars that can prove fatal to patenting an invention if you wait too long. In the United States, there is an absolute bar to filing a patent application more than one year after the invention has been described in a printed publication or sold or used in this country. The situation is even more unforgiving abroad, as a patent application must be filed somewhere before any public disclosure of the invention is made in order to preserve your right to a patent.

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3. I don’t want my competitors to known the details about my product, can we prevent our patent application from publishing?

While patent applications typically publish 18 months after their earliest filing date, providing the details of your business to competitors, you may request that your application not be published when it is filed. If requested, your application will not be published until it ultimately issues into a patent. In the event your application is abandoned, it will never be published. Requesting that your application not be published requires that you refrain from filing your patent application abroad, or revoke your request and allow the application to publish.

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4. How long does it take to obtain a patent?

Once a patent application is filed it is processed by the USPTO and waits in line to be examiner by a unit specializing in similar technology. Depending upon which art unit is involved, it may take anywhere from six months to two years before an application is first examined. Once examination begins, the patent may be granted right away or, more commonly, a series of negotiations may take place before the patentability of the application is finally decided. Typically, the process takes between one year and three years from filing to issuance of the final patent.

In some special circumstances, you may request that your application be expedited, such as in the case someone is actively infringing your claims. In this case, a higher burden is placed on the applicant, but a patent may be obtained in as little as six months.

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5. What does “patent pending” mean, and when can we use it?

The phrase “patent pending” is used in conjunction with a product or service in order to notify the public and any competitors that an application for a patent on that product or service has been filed with the USPTO. The filing of either a provisional or utility application entitles one to use “patent pending.” The law also provide for fines on anyone who falsely marks a product “patent pending” in order to deceive the public.

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6. When should I consider registering the trademarks for the name of my company or my products?

As with most intellectual property, the earlier you seek to protect your company’s trademarks the better. In the U.S. trademark rights may be established based on mere bona-fide intent to use. This allows for trademark rights to be secured before a product is ever launched.

In addition, through the registration process, a search will be conducted which is likely to identify any potential conflicts which might result from adopting the new product name.

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7. Can I use the ® symbol next to my company or product name?

Several symbols are used as notice of trademark rights. Under U.S. trademark law, the circle R (®) may only be used in connection with a federally registered trademark (i.e. registration granted by USPTO). If your mark has not been registered, you may use the TM and SM symbols, which denote that you claim trademark and service mark rights respectively.

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