专利基础知识

发明专利是一项物业由美国专利和商标局（USPTO）颁发的发明权，授予。一般来说，一个新的专利的期限是20年在美国提出专利申请之日起，在特殊情况下，较早相关的应用程序提交的日期，须支付维修费。美国专利授权是有效的，仅在美国，美国领土，美国的财产。在某些情况下，专利期限扩展或调整的可能。

授予专利所赋予的权利，在“章程”的语言和赠款本身，是“有权排除他人制造，使用，许诺销售或者销售”在美国的发明或者“进口”到美国的发明。什么是理所当然的，是不正确的制造，使用，许诺销售，销售或进口，但有权排除他人制造，使用，许诺销售，销售或进口的发明。一旦发出专利的，专利权人必须执行不援助美国专利商标局的专利。

专利有三种类型：
1）实用专利可授予任何人发明或发现任何新的和有用的过程中，机器，制造的文章，或物质构成的，或者其改进所提出的任何新的和有用的;
2）外观设计专利可授予任何人谁发明了一种新的制造的文章，原来，和观赏性的设计;
3）植物专利可授予任何人发明或发现无性繁殖任何独特的植物新品种。

专利法

美国宪法赋予国会的权力，以制定有关专利的法律，在第I条，第8条，内容如下：“国会有权。。。促进科学和实用技艺的进步，确保有限的时间对作家和发明家各自的著作和发现的专有权。“根据这项权力，国会有时间制定与专利有关的各项法律。在1790年颁布了第一部专利法。专利的法律进行了全面修订，制定，1952年7月19日，1953年1月1日起生效。据编纂，“美国法典”标题35。此外，1999年11月29日，国会颁布了1999年美国发明人保护法“（AIPA），从而进一步修改的专利法。见公法106-113，113 Stat的。 1501（1999）。

专利法规定的标的物可能获得专利和申请专利的条件。该法规定美国专利和商标局管理有关的法律授予专利，包含各种与专利有关的其他规定。

有什么可以申请专利

专利法规定的一般领域，可以申请专利的标的物，以及在何种情况下可能获得专利的条件。

在语言的章程，任何人士如“发明或发现任何新的和有用的过程中，机器，制造，或物质组成的，或者其改进所提出的任何新的和有用的，可能获得专利”的条件和要求法律。由法律规定的“过程”这个词是作为一个过程，行为或方法，主要包括工业或技术的进程。在规约中使用的术语“机器”，无须解释。 “制造”一词是指所做的物品，包括所有的制成品。术语“的物质组成的”涉及到的化学成分，并可能包括成分的混合物，以及新的化合物。这些题材类合计包括几乎一切是由男人和流程，使产品。

1954年的“原子能法”，不包括仅在特殊核材料或原子能利用原子武器，42 USC 2181（一）发明专利有用。

专利法规定，标的物必须是“有用的”。“有用”一词是指在这方面的条件，标的物有一个有用的目的，还包括可操作性，也就是说，一台机器将无法操作执行不会被称为预期的目的，有用的，并因此不会被授予专利。

Interpretations of the statute by the courts have defined the limits of the field of subject matter that can be patented, thus it has been held that the laws of nature, physical phenomena, and abstract ideas are not patentable subject matter.

A patent cannot be obtained upon a mere idea or suggestion. The patent is granted upon the new machine, manufacture, etc., as has been said, and not upon the idea or suggestion of the new machine. A complete description of the actual machine or other subject matter for which a patent is sought is required.

Novelty And Non-Obviousness, Conditions For Obtaining A Patent

In order for an invention to be patentable it must be new as defined in the patent law, which provides that an invention cannot be patented if: “(a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent,” or “(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country more than one year prior to the application for patent in the United States . 。 .”

If the invention has been described in a printed publication anywhere in the world, or if it was known or used by others in this country before the date that the applicant made his/her invention, a patent cannot be obtained. If the invention has been described in a printed publication anywhere, or has been in public use or on sale in this country more than one year before the date on which an application for patent is filed in this country, a patent cannot be obtained. In this connection it is immaterial when the invention was made, or whether the printed publication or public use was by the inventor himself/herself or by someone else. If the inventor describes the invention in a printed publication or uses the invention publicly, or places it on sale, he/she must apply for a patent before one year has gone by, otherwise any right to a patent will be lost. The inventor must file on the date of public use or disclosure, however, in order to preserve patent rights in many foreign countries.

Even if the subject matter sought to be patented is not exactly shown by the prior art, and involves one or more differences over the most nearly similar thing already known, a patent may still be refused if the differences would be obvious. The subject matter sought to be patented must be sufficiently different from what has been used or described before that it may be said to be nonobvious to a person having ordinary skill in the area of technology related to the invention. For example, the substitution of one color for another, or changes in size, are ordinarily not patentable.

The United States Patent And Trademark Office

Congress established the United States Patent and Trademark Office (USPTO or Office) to issue patents on behalf of the government. The Patent Office as a distinct bureau dates from the year 1802 when a separate official in the Department of State who became known as “Superintendent of Patents” was placed in charge of patents. The revision of the patent laws enacted in 1836 reorganized the Patent Office and designated the official in charge as Commissioner of Patents. The Patent Office remained in the Department of State until 1849 when it was transferred to the Department of Interior. In 1925 it was transferred to the Department of Commerce where it is today. The name of the Patent Office was changed to the Patent and Trademark Office in 1975 and changed to the United States Patent and Trademark Office in 2000.

The United States Patent and Trademark Office administers the patent laws as they relate to the granting of patents for inventions, and performs other duties relating to patents. It examines applications for patents to determine if the applicants are entitled to patents under the law and grants the patents when they are so entitled; it publishes issued patents, most patent applications filed on or after November 29, 2000, at 18 months from the earliest filing date, and various publications concerning patents; records assignments of patents; maintains a search room for the use of the public to examine issued patents and records; and supplies copies of records and other papers, and the like. Similar functions are performed with respect to the registration of trademarks. The USPTO has no jurisdiction over questions of infringement and the enforcement of patents.

The head of the Office is the Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office (Director). The Director's staff includes the Deputy Under Secretary of Commerce and Deputy Director of the USPTO, the Commissioner for Patents, the Commissioner for Trademarks, and other officials. As head of the Office, the Director superintends or performs all duties respecting the granting and issuing of patents and the registration of trademarks; exercises general supervision over the entire work of the USPTO; prescribes the rules, subject to the approval of the Secretary of Commerce, for the conduct of proceedings in the USPTO, and for recognition of attorneys and agents; decides various questions brought before the Office by petition as prescribed by the rules; and performs other duties necessary and required for the administration of the United States Patent and Trademark Office.

审查专利申请的工作被分成若干研究技术中心（TC），每个TC分配在某些技术领域的管辖权。每个TC为首的集团董事，由审查员和支持人员组成。审查员审查专利申请，并确定是否可以被授予专利。可以采取上诉委员会从他们的决定，拒绝授予专利的专利上诉和干扰，以呈请审查由美国专利商标局处长可有其他事项。考官还查明声称同样的发明创造，并可能提起诉讼，干扰称为应用程序，以确定谁是第一发明人。

除了研究热带气旋，其他办事处执行各种服务，如接收和分发邮件，接收新的申请，处理印本专利的销售，使记录的副本，检查图纸，和录制任务。目前，美国专利商标局拥有超过6500名员工，其中约一半是审查员和其他技术和法律培训。收到专利申请量在每年35万以上的速度。办公室每年收到超过五百万件邮件。

图书馆，搜索房间搜查和专利和商标的托存图书馆

美国专利和商标局在位于1C35麦迪逊杜拉尼，600街，西弗吉尼亚州亚历山德里亚，科学和技术信息中心有可供公众使用超过12万册各种语言的科学和技术的书籍，约90,000合订本期刊致力于科学与技术，77个国外专利组织的官方刊物，纸张，缩微胶卷，缩微胶片，CD-ROM的超过40万外国专利。科学和技术信息中心是向公众开放时间从8:00时至下午6:00，联邦假日周一至周五除。
许多发明家尝试之前申请了专利，使他们自己的搜索前的专利和出版物。这可以在美国专利商标局的专利检索室，图书馆，位于美国各地，已被指定为专利商标储备图书馆（PTDLs）。发明者可能通过美国专利和出版物，发现已在之前的专利，特别是发明或一个类似的初步搜索。发明者也可以聘请专利律师或代理人进行初步搜索。此搜索可能不完整如由美国专利商标局在审查申请的，但只是，正如其名称所示，初步目的。出于这个原因，专利审查员，并经常，拒绝在初步搜索没有发现之前，专利或出版物的基础上申请索赔。
谁可以不来，专利检索室可以下令对原专利的列表或的，包括搜索领域的子类中交叉引用的专利，美国专利商标局的副本，或可以检查并获得1专利和商标专利的副本托存图书馆。 PTDLs收到当前问题的美国专利，并保持早些时候发出的专利和商标信息的集合。这些藏品的范围各不相同从库库，范围从仅近年来专利的全部或大部分自1790年以来颁发的专利。

这些专利的集合，是开放给公众使用。此外，每个PTDLs提供美国专利分类系统（例如，手册分类指数，美国专利分类系统，分类定义等）和其他专利文件和形式的出版物，并提供技术人员协助在其使用，以帮助市民获得有效地获得的专利中包含的信息。举办专利号序列集合。

在所有PTDLs提供卡西斯CD-ROM系统。各种文件，它允许的有效身份证件到适当的分类搜索，提供协助寻找的专利，在专利的数值文件分类分配到的专利数量，提供了当前的所有专利分类（S），允许字搜索分类标题，摘要，并提供一定的书目信息，在最近颁发的专利。

为从微缩胶卷文件副本的设施，装订成册的文件或CD-ROM一般规定收取费用。
由于变化的之间PTDLs的专利集合的范围和对市民的服务时间，任何人都打算在一个特定的库使用的专利应联络该库，提前，有关收集，服务，小时，所以为避免可能造成的不便。完整的对于一个PTDLs的列表，请参阅美国专利商标局网站在www.uspto.gov/web/offices/ac/ido/ptdl/的。

律师和代理人

专利申请的准备，并在美国专利和商标局（美国专利商标局或办公室）的程序进行，获得的专利是一种承诺，需要对专利法和规则和办公室的做法和程序的知识，以及在特定的发明所涉及的科学和技术问题的知识。
发明者可能自己编写的应用程序，并在美国专利商标局向他们和进行诉讼，但除非他们熟悉这些事项或详细研究，他们可能会相当困难。虽然在这项工作中不能熟练的人在许多情况下，获得专利的可能，就没有保证，获得专利充分保障，特别是发明。

大多数发明人聘请的注册专利律师或专利代理人的服务。法律赋予美国专利商标局的权力，使执政行为和专利代理人和代理人的认可之前，美国专利商标局执业规则和规例。由美国专利商标局不认可这种做法的人是不允许法律面前代表美国专利商标局的发明者。美国专利商标局维护律师和代理人名册。被录取到该寄存器，一个人必须遵守办公室规定的法规，这需要证明此人是良好的道德品质和信誉良好的和他/她的法律，科学和技术资格的必要呈现为专利申请人提供有价值的服务。这些一定的资格，必须通过考试证明。承认考试者，必须有一个工程或物理科学中的大专以上学历或相当于这种程度。

美国专利商标局注册了两个律师不是在律师的人士。前者的人现在被称为“专利代理人”，后者的人被称为“专利代理人”。专利律师和专利代理人获准准备申请一项专利，并进行起诉在美国专利商标局。然而，专利代理人，不能在法庭上进行的专利诉讼或执行所在地的法律实践，认为各种服务。例如，专利代理人可以不画了与专利有关的合同，如转让或许可，如果他/她所在的国家认为，作为从事法律起草合同。

一些个人和未注册的组织，宣传他们的服务，在该领域的专利检索和发明的市场营销和发展。这些个人和组织不能代表之前，美国专利商标局的发明者。他们不受美国专利商标局的纪律，但美国专利商标局提供了一个公开论坛（http://www.uspto.gov/web/offices/com/iip/complaints.htm）发明促销员/推广公司的投诉和响应出版。

聘请专利律师或代理人，的发明者执行的授权委托书，这是在美国专利商标局申请并在申请文件中的记录。当注册律师或代理人已委任办公室沟通并不直接与发明人，但因为他/她被发明以后的授权书或代理进行通信，虽然是免费的发明者与美国专利商标局有关状态他/她的申请。发明者可能会删除撤销委托书的授权书或代理。

美国专利商标局有力量夺取律师资格，或暂停执业前，犯有严重不当行为等，但是这只能做全面聆讯后，提出明确和令人信服的证据有关的不当行为的人。美国专利商标局收到，并在适当情况下采取行动后，对律师和代理人的投诉。发明者的专利代理人和代理人为他们的专业服务收取的费用，不受美国专利商标局的监管。滥收费用的明确证据可以买得起的基础上，美国专利商标局的行动，但很少介入纠纷办公室有关费用。

披露文件计划

由美国专利和商标局（美国专利商标局或办公室）提供的服务的接受和保存两年的发明构思的日期的证据“披露文件”。

披露的发明（称为信息披露文件），发明人或发明人签署一份文件，可以由发明者（或任何时有共同发明的发明人之一）转交美国专利商标局，所发明的所有者，或由律师或发明人（S）或业主的代理人。披露文件将被保留两年，然后被销毁，除非它被称为相关的专利申请的两年内，在另一封信中。

披露文件并不是一件专利申请。及其在美国专利商标局收到的日期，也不会成为随后提交的专利申请的有效申请日期。

这些文件将保持美国专利商标局没有按照35 USC 122（b）项，有效，2000年11月29日出版的信心。

这项计划不会减少价值的传统，见证，永久绑定，页面编号的实验室笔记本电脑或作为一项发明构思的证据公证的记录，但它应该提供比通过邮件提供更可信的证据形式对自己或他人以挂号邮件披露。

警告发明者

两年的保留期限是不是一个“宽限期”，在此期间，发明者可以等待他或她的专利申请文件没有好处的可能损失。我们必须承认在建立优先的发明，誓章或证词指信息披露文件，通常必须建立在尽职调查完成的发明或者在提交专利申请后提交的披露文件。

发明家们也提醒说，将禁止任何公开使用或出售在美国或出版的发明，在世界各地超过一年的对该项发明的专利申请提交前授予美国专利。外国专利法在这方面可能会远远超过美国法律的限制。

欲了解更多有关信息披露文件的详细信息，请访问www.uspto.gov /网络/办公室/ PAC / disdo.html美国专利商标局网站。

临时专利的申请

发明者也有提交临时专利申请的选项。临时申请在下面更详细地描述。临时申请获得更多的信息，请访问美国专利商标局网站或致电800-786-9199或703-308-4357，要求打印小册子。

专利和商标的托存图书馆（PTDLs）

一些专利和商标的托存图书馆（PTDLs）参加在美国专利商标局授权代理人接受披露文件计划下提交的文件。此服务在PTDL提供一个完整的交易现场。文件的由收到PTDL时间接收的识别号码和日期。原装的文件发送到处理和保留美国专利商标局。
PTDL库的列表，在“官方公报”和美国专利商标局网站上可以找到。专利和专利有关的参考材料的集合可用在全国PTDLs网络。您的访问之前的PTDL联系，以了解其馆藏，服务和小时。

独立发明人资源

美国专利商标局的网站（www.uspto.gov /网络/办公室/ COM / IIP）的部分专门独立的发明者（网站题为“独立发明资源”），并提供广泛覆盖大部分专利方面的材料商标的过程。该网站还努力教育有关欺诈的发明开发和市场营销公司和欺诈，可能会影响这些发明家和信息提示和警示标志，避免这些骗局的独立发明者。该网站还公布了对这些企业的投诉，并从他们那里收到任何回应。该网站还提供其他美国专利商标局的网站，以及其他联邦机构的链接的链接。

发明者援助中心（IAC）提供的主要联络点，独立发明者的社会各界和广大市民提交的披露文件，临时专利申请，或定期，非临时专利申请的一般信息。

出版专利申请

要求公开的专利申请是由美国发明家，1999年大部分厂房和公用设施上，2000年11月29日或之后提交的专利申请保护法“。如果只对一种植物或实用的应用，2000年11月29日或之后的申请，申请人可以要求该应用程序不会被发表，但一直没有发明并不会在外国提出过申请的主题需要18个月后提交（或早些时候声称的优先日期），或根据“专利合作条约”的出版物。出版最早的有效申请日或优先权日声称由一个应用程序后的18个月期间届满后发生。下列出版物，专利申请不再持有信心，由办公室和公众的任何成员可以请求访问应用程序的整个文件的历史。

作为公布的结果，申请人可以断言临时权利。这些权利提供了机会获得来自第三方的侵犯，实际发出通知申请人向第三方发布的应用程序索赔，并从一个大致相同的索赔申请专利问题的一个合理的使用费的专利权。因此，预授予专利侵权损害赔偿，由另一现已有售。

宣誓或声明，签署

申请人宣誓或声明（发明者）按法律规定，非临时申请。发明人必须宣誓或声明，他/她相信他/她是原来的应用程序的题材和第一发明人，他/她必须使美国专利商标局所规定的法律和各种报表所需的其他各种报表规则。如果一个应用程序的数据表申请，美国专利商标局的规则要求在宣誓或声明的报表少。看到标题37联邦法规第1.63和1.76守则。宣誓就职宣誓必须由发明之前，公证人或其他获授权监誓的人员。可以用来代替宣誓的声明。宣誓或声明的要求，涉及设计，植物和实用发明申请补发申请。并不需要公证的声明。申请延续或分案申请时，在提交的在先申请的宣誓或声明的副本可使用。

宣誓或声明必须由发明人亲自签署，或依法有权使发明者代表申请的人。第一个和最后一个完整的名称，中间的字母或名称，如果有的话，每个发明的公民。如果不使用的应用程序数据表还要求每个发明者和外国优先权的资料（如有）的邮件地址。

归档，搜索，和考试费

专利申请须缴纳基本费和附加费，包括搜索费，考试费和发行费。这些费用是因为在申请的时间。现行收费咨询在http://www.uspto.gov美国专利商标局网站。如果有3个以上独立权利要求，总额超过20索赔，或如纸的说明书和权利要求总数超过100，是由于额外的申请费。如果申请包含多项从属权利要求，需要额外的费用。
如果发明的所有者是一个小实体，（一个独立的发明家，小企业的关注或非营利组织），大部分费用都减少了一半，声称如果小实体的地位。如果小实体的地位所需的和适当的，申请人应当提交书面断言一个小实体的地位，除了支付小实体申请费。书面的说法可能是一个简单的语句如“申请人声称小实体的地位。”小实体地位的申请人声称要调查小实体的地位是否适当声称这种地位之前的送文函。

在计算费用时，一位自称是奇依赖，如果它引用一个单一在前的权利，这可能是一个独立或从属权利要求采用。一个多项从属权利要求或任何索赔由此而定，应被视为独立的从属权利要求，按照其中提到的索赔数目。

法律还规定，提交申请后，支付额外费用的额外索赔介绍。总数超过已支付的其他索赔，或额外的独立权利要求的独立权利要求的数量已占修正案时提出的，它必须伴随着由于任何附加费。
大部分的收费如有变更，在每年的10月。

规格（说明书和权利要求）

在取景的申请，应遵守下列顺序安排：
（一）申请的传递形式。
（二）费用的传递形式。
（三）申请资料表。
（四）规范。
（五）图纸。
（六）执行宣誓或声明。

规范应具有以下部分，依次是：
（1）发明的名称。
（2）交叉参考相关的应用程序（如有）。（相关的应用程序可能被应用程序数据表上列出的，要么不是，或一起与规范上市。）
联邦政府资助的研究/开发（3）声明（如有）。
（4）“序列表”，表或计算机程序光盘和纳入上市附录参考光盘上的材料提交的参考。应指定光盘的总数，包括重复和每个光盘上的文件。
（5）发明的背景。
（6）小结的发明。
（7）图纸的若干意见（如有）的简要说明。
（8）发明的详细描述。
（9）索赔或索赔。
（10）摘要披露。
（11）序列表（如有）。

规范必须包括发明和制作和使用的方式和过程的书面说明，并须是在这样的完整，清晰，简明，确切条款，以使任何人在科技领域的熟练本发明涉及，或与它最近的连接，并使用相同的。

规范必须设置提出了精确的发明专利征求等方式，以区别于其他发明，从什么是老。它必须完全描述的过程中的具体体现，机械，制造，物质组成，或改进发明，必须说明操作或原则，如适用的模式。必须载明拟由发明家开展发明的最佳模式。

在规范改善的情况下，要特别指出的过程中，机器，制造，或改善有关的问题组成部分或零部件，并说明应限于具体的改善和这些部件一定与它合作，或可能需要一个完整的理解或描述。

的发明，它应该尽可能短，并尽可能具体的标题（不超过500个字符），应作为一个规范的第一页上的标题出现，如果它不以其他方式出现在应用程序的开始。一个简短的摘要在其中，这是在艺术的新发明涉及，必须设置一个单独的页面，最好索赔提出规范技术交底。抽象的，应该是在一个150字以内的单款的形式。

一个简要的说明它的性质和内容，其中可能包括发明的对象声明的发明，应先详细描述。摘要应该是相称的发明声称任何对象背诵应该作为要求保护的发明的。

当有图纸，应当有一个图纸的若干意见的简要说明，对发明的详细描述，系指不同的意见，由指定的数字的号码，并使用不同的参考数字。

规范必须结束与索赔或索赔特别指出并清楚地声称申请人的发明方面的题材。申请人提出索赔或索赔设置应用程序的部分是应用程序的重要组成部分，因为它是声称的专利侵权的问题是由法院来判断所给予的保护范围。

他们从彼此大不相同，都不会过分乘以可提出多个索赔。索赔可以提交一个或多个依赖的形式，指回，并进一步限制在同一应用程序的另一项索赔或索赔。任何从属权利要求是指回到一个以上的其他索赔被认为是一个“多项从属权利要求。”

多项从属权利要求应当是指仅在替代的其他诉讼请求。一个多项从属权利要求不得担任任何其他多项从属权利要求的基础上。依赖形式的债权，应解释为包括所有纳入参考的从属权利要求索赔的限制。一个多项从属权利要求应当被解释为包括所有限制的特殊关系，它正在考虑索赔。

索赔或索赔必须符合规定的其余规格和使用中的索赔条款和短语必须在描述找到明确的支持或前期基础，以便在索赔条款的含义可能是确定的发明参考描述。

模型，展品，标本

模型或展品不需要在大多数专利申请发明以来，在规范的描述，图纸必须是不够充分，清晰，完整，且能够被理解为模型的援助没有透露发明。

如果认为有必要由该办公室的工作模式，或其他实物展品，可能需要。这是不是经常做的非常。在所谓的永动机装置的专利申请的情况下，可能会被要求的工作模式。

When the invention relates to a composition of matter, the applicant may be required to furnish specimens of the composition, or of its ingredients or intermediates, for inspection or experiment. If the invention is a microbiological invention, a deposit of the micro-organism involved is required.

Examination of Applications and Proceedings in the United States Patent and Trademark Office

Applications, other than provisional applications, filed in the United States Patent and Trademark Office (USPTO or Office) and accepted as complete applications are assigned for examination to the respective examining technology centers (TC) having charge of the areas of technology related to the invention. In the examining TC, applications are taken up for examination by the examiner to whom they have been assigned in the order in which they have been filed or in accordance with examining procedures established by the Director.
Applications will not be advanced out of turn for examination or for further action except as provided by the rules, or upon order of the Director to expedite the business of the Office, or upon a showing which, in the opinion of the Director, will justify advancing them.

The examination of the application consists of a study of the application for compliance with the legal requirements and a search through US patents, publications of patent applications, foreign patent documents, and available literature, to see if the claimed invention is new, useful and nonobvious and if the application meets the requirements of the patent statute and rules of practice. If the examiner's decision on patentability is favorable, a patent is granted.

On the average, patents are granted in of about two out of every three applications for patents which are filed.

限制

If two or more inventions are claimed in a single application, and are regarded by the Office to be of such a nature (eg independent and distinct) that a single patent should not be issued for both of them, the applicant will be required to limit the application to one of the inventions. The other invention may be made the subject of a separate application which, if filed while the first application is still pending, will be entitled to the benefit of the filing date of the first application. A requirement to restrict the application to one invention may be made before further action by the examiner.

Office Action

The applicant is notified in writing of the examiner's decision by an Office “action” which is normally mailed to the attorney or agent of record. The reasons for any adverse action or any objection or requirement are stated in the Office action and such information or references are given as may be useful in aiding the applicant to judge the propriety of continuing the prosecution of his/her application.
If the claimed invention is not directed to patentable subject matter, the claims will be rejected. If the examiner finds that the claimed invention lacks novelty or differs only in an obvious manner from what is found in the prior art, the claims may also be rejected. It is not uncommon for some or all of the claims to be rejected on the first Office action by the examiner; relatively few applications are allowed as filed.

Applicant's Reply

The applicant must request reconsideration in writing, and must distinctly and specifically point out the supposed errors in the examiner's Office action. The applicant must reply to every ground of objection and rejection in the prior Office action. The applicant's reply must appear throughout to be a bona fide attempt to advance the case to final action or allowance. The mere allegation that the examiner has erred will not be received as a proper reason for such reconsideration.

In amending an application in reply to a rejection, the applicant must clearly point out why he/she thinks the amended claims are patentable in view of the state of the art disclosed by the prior references cited or the objections made. He/she must also show how the claims as amended avoid such references or objections. After reply by the applicant, the application will be reconsidered, and the applicant will be notified as to the status of the claims, that is, whether the claims are rejected, or objected to, or whether the claims are allowed, in the same manner as after the first examination. The second Office action usually will be made final.
Interviews with examiners may be arranged, but an interview does not remove the necessity of replying to Office actions within the required time.

Final Rejection

On the second or later consideration, the rejection or other action may be made final. The applicant's reply is then limited to appeal in the case of rejection of any claim and further amendment is restricted. Petition may be taken to the Director in the case of objections or requirements not involved in the rejection of any claim. Reply to a final rejection or action must include cancellation of, or appeal from the rejection of, each claim so rejected and, if any claim stands allowed, compliance with any requirement or objection as to form. In making such final rejection, the examiner repeats or states all grounds of rejection then considered applicable to the claims in the application.

Amendments to Application

The applicant may amend the application as specified in the rules, or when and as specifically required by the examiner.
Amendments received in the Office on or before the mail date of the first Office action are called “preliminary amendments,” and their entry is governed by 37 CFR 1.115. Amendments in reply to a non-final Office action are governed by CFR 1.111. Amendments filed after final action are governed by 37CFR 1.116 and 37CFR 41.33.

The specification, claims, and drawing must be amended and revised when required, to correct inaccuracies of description and definition or unnecessary words, and to provide substantial correspondence between the claims, the description, and the drawing. All amendments of the drawings or specification, and all additions thereto must not include new matter beyond the original disclosure. Matter not found in either, involving a departure from or an addition to the original disclosure, cannot be added to the application even if supported by a supplemental oath or declaration, and can be shown or claimed only in a separate application.

在1.121病死率37作出修订，以应用程序的方式提供。添加，删除或替换一个段落，更换一节，或由替补规范，规则规定，必须由规范（但不包括索赔）的修订。替换段落标记（例如，下划线和删除线），以显示所有的变化，相对以前的版本，该段。新的段落，是没有任何底线。如果替代规范申请，必须提交显示所有的变化相对要立即记录规范之前的版本的标记（例如，下划线和删除线），它必须伴随着一份声明中，没有新的替代规范包括没关系，它必须伴随着干净的版本没有标记。

没有图纸的变化可能会办公室批准除外。在任何绘图中的建设可能会作出修改，只有通过提交替代图纸，其中每个都必须贴上“置换表”，在其顶部的边缘，如果替换现有的图纸。任何替换页的图纸必须包括所有的表上立即之前的版本中出现的数字，即使只有一个数字的修订。任何新的工作表包含一个额外的图图必须标示为上边距“新表。”所有图纸必须在绘图修正案或言论的修正案文件的部分，详细解释。

索赔的修订是将取代所有先前版本的应用程序中的索赔索赔清单中提出的所有索赔。索赔清单，每一个索赔的地位，必须表明其索赔号码后，使用后的37 CFR 1.121（c）条所列的七个括号表达式之一。 “目前修订后的”索赔必须提交与标记（例如，下划线和删除线）。目前正在修订的所有悬而未决的索赔必须在干净的版本的索赔清单中没有任何标记（例如，下划线和删除线）。

The original numbering of the claims must be preserved throughout the prosecution. When claims are canceled, the remaining claims must not be renumbered. When claims are added by amendment or substituted for canceled claims, they must be numbered by the applicant consecutively beginning with the number next following the highest numbered claim previously presented. When the application is ready for allowance, the examiner, if necessary, will renumber the claims consecutively in the order in which they appear or in such order as may have been requested by applicant.

Time for Reply and Abandonment

The reply of an applicant to an action by the Office must be made within a prescribed time limit. The maximum period for reply is set at six months by the statute (35 USC 133) which also provides that the Director may shorten the time for reply to not less than 30 days. The usual period for reply to an Office action is three months. A shortened time for reply may be extended up to the maximum six-month period. An extension of time fee is normally required to be paid if the reply period is extended. The amount of the fee is dependent upon the length of the extension. Extensions of time are generally not available after an application has been allowed. If no reply is received within the time period, the application is considered as abandoned and no longer pending. However, if it can be shown that the failure to prosecute was unavoidable or unintentional, the application may be revived upon request to and approval by the Director. The revival requires a petition to the Director, and a fee for the petition, which must be filed without delay. The proper reply must also accompany the petition if it has not yet been filed.

Appeal to the Board of Patent Appeals and Interferences and to the Courts

If the examiner persists in the rejection of any of the claims in an application, or if the rejection has been made final, the applicant may appeal to the Board of Patent Appeals and Interferences in the United States Patent and Trademark Office. The Board of Patent Appeals and Interferences consists of the Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, the Deputy Under Secretary of Commerce for Intellectual Property and Deputy Director of the USPTO, the Commissioner for Patents, and the administrative patent judges, but normally each appeal is heard by only three members. An appeal fee is required and the applicant must file a brief to support his/her position. An oral hearing will be held if requested upon payment of the specified fee.

As an alternative to appeal, in situations where an applicant desires consideration of different claims or further evidence, a request for continued examination (RCE) or a continuation application is often filed. For the requirements for filing an RCE, see 37 CFR 1.114. An RCE is not available in an application for a design patent, but a continuation of a design application may be filed as a Continued

Prosecution Application (CPA) under 37 CFR 1.53(d).

If the decision of the Board of Patent Appeals and Interferences is still adverse to the applicant, an appeal may be taken to the Court of Appeals for the Federal Circuit or a civil action may be filed against the Director in the United States District Court for the District of Columbia. The Court of Appeals for the Federal Circuit will review the record made in the Office and may affirm or reverse the Office's action. In a civil action, the applicant may present testimony in the court, and the court will make a decision.

Interferences

Occasionally two or more applications are filed by different inventors claiming substantially the same patentable invention. The patent can only be granted to one of them, and a proceeding known as an “interference” is instituted by the Office to determine who is the first inventor and entitled to the patent. About one percent of the applications filed become involved in an interference proceeding. Interference proceedings may also be instituted between an application and a patent already issued, provided that the patent has not been issued, nor the application been published, for more than one year prior to the filing of the conflicting application, and provided also that the conflicting application is not barred from being patentable for some other reason.

Each party to such a proceeding must submit evidence of facts proving when the invention was made. In view of the necessity of proving the various facts and circumstances concerning the making of the invention during an interference, inventors must be able to produce evidence to do this. If no evidence is submitted a party is restricted to the date of filing the application as his/her earliest date. The priority question is determined by a board of three administrative patent judges on the evidence submitted. From the decision of the Board of Patent Appeals and Interferences, the losing party may appeal to the Court of Appeals for the Federal Circuit or file a civil action against the winning party in the appropriate United States district court.

The terms “conception of the invention” and “reduction to practice” are encountered in connection with priority questions. Conception of the invention refers to the completion of the devising of the means for accomplishing the result. Reduction to practice refers to the actual construction of the invention in physical form: in the case of a machine it includes the actual building of the machine, in the case of an article or composition it includes the actual making of the article or composition, in the case of a process it includes the actual carrying out of the steps of the process. Actual operation, demonstration, or testing for the intended use is also usually necessary. The filing of a regular application for patent completely disclosing the invention is treated as equivalent to reduction to practice. The inventor who proves to be the first to conceive the invention and the first to reduce it to practice will be held to be the prior inventor, but more complicated situations cannot be stated this simply.

Allowance and Issue of Patent

If, on examination of the application, or at a later stage during the reconsideration of the application, the patent application is found to be allowable, a Notice of Allowance and Fee(s) Due will be sent to the applicant, or to applicant's attorney or agent of record, if any, and a fee for issuing the patent and if applicable, for publishing the patent application publication (see 37 CFR 1.211-1.221), is due within three months from the date of the notice. If timely payment of the fee(s) is not made, the application will be regarded as abandoned. See the current fee schedule at www.uspto.gov.

The Director may accept the fee(s) late, if the delay is shown to be unavoidable (35 USC 41, 37 CFR 1.137(a)) or unintentional (35 USC 151, 37 CFR 1.137(b)). When the required fee are paid, the patent issues as soon as possible after the date of payment, dependent upon the volume of printing on hand. The patent grant then is delivered or mailed on the day of its grant, or as soon thereafter as possible, to the inventor's attorney or agent if there is one of record, otherwise directly to the inventor. On the date of the grant, the patent file becomes open to the public for applications not opened earlier by publication of the application.

In cases where the publication of an application or the granting of a patent would be detrimental to the national security, the Comissioner of Patents will order that the invention be kept secret and shall withhold the publication of the application or the grant of the patent for such period as the national interest requires. The owner of an application which has been placed under a secrecy order has a right to appeal from the order to the Secretary of Commerce. 35 USC 181.

Patent Term Extension and Adjustment

The terms of certain patents may be subject to extension or adjustment under 35 USC 154(b). Such extension or adjustment results from certain specified types of delays which may occur while an application is pending before the Office.

Utility and plant patents which issue from original applications filed between June 8, 1995 and May 28, 2000 may be eligible for patent term extension (PTE) as set forth in 37 CFR 1.701. Such PTE may result from delays due to interference proceedings under 35 USC 135(a), secrecy orders under 35 USC 181, or successful appellate review.

Utility and plant patents which issue from original applications filed on or after May 29, 2000 may be eligible for patent term adjustment (PTA) as set forth in 37 CFR 1.702 – 1.705. There are three main bases for PTA under 35 USC 154(b). The first basis for PTA is the failure of the Office to take certain actions within specific time frames set forth in 35 USC 154(b)(1)(A) (See 37 CFR 1.702(a) and 1.703(a)). The second basis for PTA is the failure of the Office to issue a patent within three years of the actual filing date of the application as set forth in 35 USC 154(b)(1)(B) (See 37 CFR 1.702(b) and 1.703(b)). The third basis for PTA is set forth in 35 USC 154(b)(1)(C), and includes delays due to interference proceedings under 35 USC 135(a), secrecy orders under 35 USC 181, or successful appellate review (See 37 CFR 1.702(c)-(e) and 1.703(c)-(e)).

Any PTA which has accrued in an application will be reduced by the time period during which an applicant failed to engage in reasonable efforts to conclude prosecution of the application pursuant to 35 USC 154(b)(2)(C). A non-exclusive list of activities which constitute failure to engage in reasonable efforts to conclude prosecution is set forth in 37 CFR 1.704.

An initial PTA value is printed on the notice of allowance and fee(s) due, and a final PTA value is printed on the front of the patent. Any request for reconsideration of the PTA value printed on the notice of allowance and fee(s) due should be made in the form of an application for patent term adjustment, which must be filed prior to or at the same time as the payment of the issue fee. (See 37 CFR 1.705.)

Nature of Patent and Patent Rights

The patent is issued in the name of the United States under the seal of the United States Patent and Trademark Office, and is either signed by the Director of the USPTO or is electronically written thereon and attested by an Office official. The patent contains a grant to the patentee, and a printed copy of the specification and drawing is annexed to the patent and forms a part of it. The grant confers “the right to exclude others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States” and its territories and possessions for which the term of the patent shall be generally 20 years from the date on which the application for the patent was filed in the United States or, if the application contains a specific reference to an earlier filed application under 35 USC 120, 121 or 365(c), from the date of the earliest such application was filed, and subject to the payment of maintenance fees as provided by law.

The exact nature of the right conferred must be carefully distinguished, and the key is in the words “right to exclude” in the phrase just quoted. The patent does not grant the right to make, use, offer for sale or sell or import the invention but only grants the exclusive nature of the right. Any person is ordinarily free to make, use, offer for sale or sell or import anything he/she pleases, and a grant from the government is not necessary. The patent only grants the right to exclude others from making, using, offering for sale or selling or importing the invention. Since the patent does not grant the right to make, use, offer for sale, or sell, or import the invention, the patentee's own right to do so is dependent upon the rights of others and whatever general laws might be applicable. A patentee, merely because he/she has received a patent for an invention, is not thereby authorized to make, use, offer for sale, or sell, or import the invention if doing so would violate any law. An inventor of a new automobile who has obtained a patent thereon would not be entitled to use the patented automobile in violation of the laws of a state requiring a license, nor may a patentee sell an article, the sale of which may be forbidden by a law, merely because a patent has been obtained.

Neither may a patentee make, use, offer for sale, or sell, or import his/her own invention if doing so would infringe the prior rights of others. A patentee may not violate the federal antitrust laws, such as by resale price agreements or entering into combination in restraints of trade, or the pure food and drug laws, by virtue of having a patent. Ordinarily there is nothing that prohibits a patentee from making, using, offering for sale, or selling, or importing his/her own invention, unless he/she thereby infringes another's patent which is still in force. For example, a patent for an improvement of an original device already patented would be subject to the patent on the device.

The term of the patent shall be generally 20 years from the date on which the application for the patent was filed in the United States or, if the application contains a specific reference to an earlier filed application under 35 USC 120, 121 or 365(c), from the date of the earliest such application was filed, and subject to the payment of maintenance fees as provided by law. A maintenance fee is due 3 1/2, 7 1/2 and 11 1/2 years after the original grant for all patents issuing from the applications filed on and after December 12, 1980. The maintenance fee must be paid at the stipulated times to maintain the patent in force. After the patent has expired anyone may make, use, offer for sale, or sell or import the invention without permission of the patentee, provided that matter covered by other unexpired patents is not used. The terms may be extended for certain pharmaceuticals and for certain circumstances as provided by law.

Maintenance Fees

All utility patents that issue from applications filed on and after December 12, 1980 are subject to the payment of maintenance fees which must be paid to maintain the patent in force. These fees are due at 3 1/2, 7 1/2 and 11 1/2 years from the date the patent is granted and can be paid without a surcharge during the “window-period” which is the six-month period preceding each due date, eg, three years to three years and six months. (See fee schedule for a list of maintenance fees.) In submitting maintenance fees and any necessary surcharges, identification of the patents for which maintenance fees are being paid must include the patent number, and the application number of the US application for the patent on which the maintenance fee is being paid. If the payment includes identification of only the patent number, the Office may apply payment to the to the patent identified by patent number in the payment or the Office may return the payment. (See 37, Code of Federal Regulations, section 1.366(c).)

Failure to pay the current maintenance fee on time may result in expiration of the patent. A six-month grace period is provided when the maintenance fee may be paid with a surcharge. The grace period is the six-month period immediately following the due date. The USPTO does not mail notices to patent owners that maintenance fees are due. If, however, the maintenance fee is not paid on time, efforts are made to remind the responsible party that the maintenance fee may be paid during the grace period with a surcharge.

Correction of Patents

Once the patent is granted, it is outside the jurisdiction of the USPTO except in a few respects. The Office may issue without charge a certificate correcting a clerical error it has made in the patent when the printed patent does not correspond to the record in the Office. These are mostly corrections of typographical errors made in printing. Some minor errors of a typographical nature made by the applicant may be corrected by a certificate of correction for which a fee is required. The patentee may disclaim one or more claims of his/her patent by filing in the Office a disclaimer as provided by the statute (35 USC 353).

When the patent is defective in certain respects, the law provides that the patentee may apply for a reissue patent. Following an examination in which the proposed changes correcting any defects in the original patent are evaluated, a reissue patent would be granted to replace the original and is granted only for the balance of the unexpired term. However, the nature of the changes that can be made by means of the reissue are rather limited; new matter cannot be added. In a different type of proceeding, any person may file a request for reexamination of a patent, along with the required fee, on the basis of prior art consisting of patents or printed publications. At the conclusion of the reexamination proceedings, a certificate setting forth the results of the reexamination proceeding is issued.

Assignments and Licenses

A patent is personal property and may be sold to others or mortgaged; it may be bequeathed by a will; and it may pass to the heirs of a deceased patentee. The patent law provides for the transfer or sale of a patent, or of an application for patent, by an instrument in writing. Such an instrument is referred to as an assignment and may transfer the entire interest in the patent. The assignee, when the patent is assigned to him or her, becomes the owner of the patent and has the same rights that the original patentee had.

The statute also provides for the assignment of a part interest, that is, a half interest, a fourth interest, etc., in a patent. There may also be a grant that conveys the same character of interest as an assignment but only for a particularly specified part of the United States. A mortgage of patent property passes ownership thereof to the mortgagee or lender until the mortgage has been satisfied and a retransfer from the mortgagee back to the mortgagor, the borrower, is made. A conditional assignment also passes ownership of the patent and is regarded as absolute until canceled by the parties or by the decree of a competent court.

An assignment, grant, or conveyance of any patent or application for patent should be acknowledged before a notary public or officer authorized to administer oaths or perform notarial acts. The certificate of such acknowledgment constitutes prima facie evidence of the execution of the assignment, grant, or conveyance.

Recording of Assignments

The Office records assignments, grants, and similar instruments sent to it for recording, and the recording serves as notice. If an assignment, grant, or conveyance of a patent or an interest in a patent (or an application for patent) is not recorded in the Office within three months from its date, it is void against a subsequent purchaser for a valuable consideration without notice, unless it is recorded prior to the subsequent purchase.

An instrument relating to a patent should identify the patent by number and date (the name of the inventor and title of the invention as stated in the patent should also be given). An instrument relating to an application should identify the application by its application number and date of filing, the name of the inventor, and title of the invention as stated in the application should also be given. Sometimes an assignment of an application is executed at the same time that the application is prepared and before it has been filed in the Office. Such assignment should adequately identify the application, as by its date of execution and name of the inventor and title of the invention, so that there can be no mistake as to the application intended. If an application has been assigned and the assignment is recorded, on or before the date the issue fee is paid, the patent will be issued to the assignee as owner. If the assignment is of a part interest only, the patent will be issued to the inventor and assignee as joint owners.

Joint Ownership

Patents may be owned jointly by two or more persons as in the case of a patent granted to joint inventors, or in the case of the assignment of a part interest in a patent. Any joint owner of a patent, no matter how small the part interest, may make, use, offer for sale and sell and import the invention for his or her own profit provided they do not infringe another's patent rights, without regard to the other owners, and may sell the interest or any part of it, or grant licenses to others, without regard to the other joint owner, unless the joint owners have made a contract governing their relation to each other. It is accordingly dangerous to assign a part interest without a definite agreement between the parties as to the extent of their respective rights and their obligations to each other if the above result is to be avoided.

The owner of a patent may grant licenses to others. Since the patentee has the right to exclude others from making, using, offering for sale, or selling or importing the invention, no one else may do any of these things without his/her permission. A patent license agreement is in essence nothing more than a promise by the licensor not to sue the licensee. No particular form of license is required; a license is a contract and may include whatever provisions the parties agree upon, including the payment of royalties, etc.
The drawing up of a license agreement (as well as assignments) is within the field of an attorney at law. Such attorney should be familiar with patent matters as well. A few States have prescribed certain formalities to be observed in connection with the sale of patent rights.

Infringement of Patents

Infringement of a patent consists of the unauthorized making, using, offering for sale, or selling any patented invention within the United States or US Territories, or importing into the United States of any patented invention during the term of the patent. If a patent is infringed, the patentee may sue for relief in the appropriate federal court. The patentee may ask the court for an injunction to prevent the continuation of the infringement and may also ask the court for an award of damages because of the infringement. In such an infringement suit, the defendant may raise the question of the validity of the patent, which is then decided by the court. The defendant may also aver that what is being done does not constitute infringement. Infringement is determined primarily by the language of the claims of the patent and, if what the defendant is making does not fall within the language of any of the claims of the patent, there is no literal infringement.

Suits for infringement of patents follow the rules of procedure of the federal courts. From the decision of the district court, there is an appeal to the Court of Appeals for the Federal Circuit. The Supreme Court may thereafter take a case by writ of certiorari. If the United States Government infringes a patent, the patentee has a remedy for damages in the United States Court of Federal Claims. The government may use any patented invention without permission of the patentee, but the patentee is entitled to obtain compensation for the use by or for the government. The Office has no jurisdiction over questions relating to infringement of patents. In examining applications for patent, no determination is made as to whether the invention sought to be patented infringes any prior patent. An improvement invention may be patentable, but it might infringe a prior unexpired patent for the invention improved upon, if there is one.

Patent Marking and Patent Pending

A patentee who makes or sells patented articles, or a person who does so for or under the patentee is required to mark the articles with the word “Patent” and the number of the patent. The penalty for failure to mark is that the patentee may not recover damages from an infringer unless the infringer was duly notified of the infringement and continued to infringe after the notice.
The marking of an article as patented when it is not in fact patented is against the law and subjects the offender to a penalty. Some persons mark articles sold with the terms “Patent Applied For” or “Patent Pending.” These phrases give information that an application for patent has been filed in the USPTO. The protection afforded by a patent does not start until the actual grant of the patent. False use of these phrases or their equivalent is prohibited.

Treaties and Foreign Patents

Since the rights granted by a US patent extend only throughout the territory of the United States and have no effect in a foreign country, an inventor who wishes patent protection in other countries must apply for a patent in each of the other countries or in regional patent offices. Almost every country has its own patent law, and a person desiring a patent in a particular country must make an application for patent in that country, in accordance with the requirements of that country.

The laws of many countries differ in various respects from the patent law of the United States. In most foreign countries, publication of the invention before the date of the application will bar the right to a patent. In most foreign countries maintenance fees are required. Most foreign countries require that the patented invention must be manufactured in that country after a certain period, usually three years. If there is no manufacture within this period, the patent may be void in some countries, although in most countries the patent may be subject to the grant of compulsory licenses to any person who may apply for a license.

There is a treaty relating to patents which is adhered to by 168 countries, including the United States, and is known as the Paris Convention for the Protection of Industrial Property. It provides that each country guarantees to the citizens of the other countries the same rights in patent and trademark matters that it gives to its own citizens. The treaty also provides for the right of priority in the case of patents, trademarks and industrial designs (design patents). This right means that, on the basis of a regular first application filed in one of the member countries, the applicant may, within a certain period of time, apply for protection in all the other member countries. These later applications will then be regarded as if they had been filed on the same day as the first application. Thus, these later applicants will have priority over applications for the same invention that may have been filed during the same period of time by other persons. Moreover, these later applications, being based on the first application, will not be invalidated by any acts accomplished in the interval, such as, for example, publication or exploitation of the invention, the sale of copies of the design, or use of the trademark. The period of time mentioned above, within which the subsequent applications may be filed in the other countries, is 12 months in the case of first applications for patent and six months in the case of industrial designs and trademarks.

Another treaty, known as the Patent Cooperation Treaty, was negotiated at a diplomatic conference in Washington, DC, in June of 1970. The treaty came into force on January 24, 1978, and is presently (as of December 14, 2004) adhered to by over 124 countries, including the United States. The treaty facilitates the filing of applications for patent on the same invention in member countries by providing, among other things, for centralized filing procedures and a standardized application format.

The timely filing of an international application affords applicants an international filing date in each country which is designated in the international application and provides (1) a search of the invention and (2) a later time period within which the national applications for patent must be filed. A number of patent attorneys specialize in obtaining patents in foreign countries.

Under US law it is necessary, in the case of inventions made in the United States, to obtain a license from the Director of the USPTO before applying for a patent in a foreign country. Such a license is required if the foreign application is to be filed before an application is filed in the United States or before the expiration of six months from the filing of an application in the United States unless a filing receipt with a license grant issued earlier. The filing of an application for patent constitutes the request for a license and the granting or denial of such request is indicated in the filing receipt mailed to each applicant. After six months from the US filing, a license is not required unless the invention has been ordered to be kept secret. If the invention has been ordered to be kept secret, the consent to the filing abroad must be obtained from the Director of the USPTO during the period the order of secrecy is in effect.

Foreign Applicants for US Patents

The patent laws of the United States make no discrimination with respect to the citizenship of the inventor. Any inventor, regardless of his/her citizenship, may apply for a patent on the same basis as a US citizen. There are, however, a number of particular points of special interest to applicants located in foreign countries.

The application for patent in the United States must be made by the inventor and the inventor must sign the oath or declaration (with certain exceptions), differing from the law in many countries where the signature of the inventor and an oath of inventorship are not necessary. If the inventor is dead, the application may be made by his/her executor or administrator, or equivalent, and in the case of mental disability it may be made by his/her legal representative (guardian).

No US patent can be obtained if the invention was patented abroad before applying in the United States by the inventor or his/her legal representatives if the foreign application was filed more than 12 months before filing in the United States. Six months are allowed in the case of designs. 35 USC 172.

An application for a patent filed in the United States by any person who has previously regularly filed an application for a patent for the same invention in a foreign country which affords similar privileges to citizens of the United States shall have the same force and effect for the purpose of overcoming intervening acts of others as if filed in the United States on the date on which the application for a patent for the same invention was first filed in such foreign country. This is the case, provided the application in the United States is filed within 12 months (six months in the case of a design patent) from the earliest date on which any such foreign application was filed and claims priority under 35 USC 119(b) to the foreign application. A copy of the foreign application certified by the patent office of the country in which it was filed is required to secure this right of priority.

If any application for patent has been filed in any foreign country by the applicant or by his/her legal representatives or assigns prior to his/her application in the United States, in order to claim priority under 35 USC 119(b) to the foreign application, the applicant must, in the oath or declaration accompanying the application, state the country in which the earliest such application has been filed, giving the date of filing the application. If foreign priority is claimed, any foreign application having a filing date before that of the application on which priority is claimed must also be identified in the oath or declaration. Where no claim for foreign priority under 35 USC 119(b) is made in the US application, the applicant should identify in the oath or declaration those foreign applications disclosing similar inventions filed more than a year before the filing in the United States.

An oath or alternatively a declaration must be made with respect to every application. When the applicant is in a foreign country the oath or affirmation may be before any diplomatic or consular officer of the United States, or before any officer having an official seal and authorized to administer oaths in the foreign country, whose authority shall be proved by a certificate of a diplomatic or consular officer of the United States. The oath is attested in all cases by the proper official seal of the officer before whom the oath is made.
When the oath is taken before an officer in the country foreign to the United States, all the application papers (except the drawing) must be attached together and a ribbon passed one or more times through all the sheets of the application, and the ends of the ribbons brought together under the seal before the latter is affixed and impressed, or each sheet must be impressed with the official seal of the officer before whom the oath was taken. A declaration merely requires the use of a specific averment found in 37 CFR 1.68.
If the application is filed by the legal representative (executor, administrator, etc.) of a deceased inventor, the legal representative must make the oath or declaration.

When a declaration is used, the ribboning procedure is not necessary, nor is it necessary to appear before an official in connection with the making of a declaration.

A foreign applicant may be represented by any patent attorney or agent who is registered to practice before the United States Patent and Trademark Office.

上次修改时间：2009年12月5日，

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