February 2022

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The Right to Exclude

The rights associated with a patent are the rights to exclude others from making, using, offering to sell, and selling the patented invention as explained in how to patent an idea with InventHelp article.

Does this mean that a patent is useless? No, the right to exclude others from doing something can be very powerful. Imagine if you owned the patent on the cellular phone; everyone would need a license from you to use their phone! But what if sub-portions of the cellular phone, for example the display or the electronics inside, were patented by someone else? Let’s look at two examples so we can answer that question.

Example 1: Someone else has a patent on the automobile. You obtain a patent on an automobile with an automatic transmission. Because your patent right is a right to exclude, you can exclude others from making automobiles with automatic transmissions. But can you necessarily make an automobile with an automatic transmission? No, not without permission from the person with the patent on the automobile because they have a right to exclude others from making automobiles.

Example 2: You have a patent on the hammer. No one else has a patent on any sub-portion of the hammer. You are the only one who can make a hammer, but only because you can exclude everyone else from making the hammer, not because the patent gives you the right to make a hammer.

So coming back to the example of you having a patent on the cellular phone, it would not be safe to assume that you could make cellular phones without first checking to see if sub-portions of your phone were patented by others. However, you could still exclude others from using cellular phones.

The important thing to take from the above is that obtaining a patent does not grant you carte blanche rights to make or use an invention, merely to prevent others from making or using it. Others may have patent rights in sub-portions of your invention that are necessary to make your invention. Therefore, it is always better to consult with a patent agency, like InventHelp patent agency, if something confusing.

Provisional Application

Changes in the law resulting from the GATT treaty have provided for a new kind of patent application which may be helpful to some inventors. It is called a provisional application, but it is not a substitute for the complete, non-provisional application. A provisional application provides a filing date for the technology disclosed in it and delays the time when a complete application must be filed. A provisional application has the same description and drawing requirements as a complete application, and differs in content by its lack of claims (the concise definition of the invention). The filing fee is also significantly less than for a complete, non-provisional application. But it is best to consult with professionals, like InventHelp patent an idea company, before filing.

A provisional application is not subjected to an examination by the U.S. Patent and Trademark Office. In fact, a provisional application is destroyed unless a non-provisional application is filed within one year of the date of filing the provisional application. Therefore, a provisional application should not be considered a less-expensive alternative to a complete, non-provisional application. Instead, it is preliminary to a non-provisional application.

The primary benefit of a provisional application is the fact that it buys an inventor time. First, it provides a filing date. Obtaining the earliest possible filing date is usually desirable because the filing date is used to determine what is included in the prior technology over which the invention must be an improvement. Second, because of the GATT treaty, a patent issuing from an application filed after June 7, 1995 is in force for 20 years from the filing date of a complete (non-provisional) patent application.

The provisional application gives an inventor a filing date, allowing him or her to make the invention public, without starting the 20 year period. The 20 year period does not begin to run until a non-provisional application is filed. But it must be emphasized that a provisional application will not result in a patent being issued unless a complete (non-provisional) application is filed within one year after the provisional application was filed.

A provisional application will ordinarily cost less than a non-provisional application because the filing fee is lower and there are no claims. Not drafting claims for the provisional application results in less attorney time, since about half the time in drafting a patent application is spent drafting claims. However, that portion of the attorney’s fees are merely delayed for a year, since it will be necessary to draft claims if a non-provisional application is filed. Depending upon the quantity of work patenting agency, such as patent invention InventHelp agency, the client wants, the cost for a provisional application can vary from $500 for simply placing existing disclosures in non-provisional patent application format to as much as the cost of having a complete (non-provisional) patent application prepared.