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。

由法院规约的解释定义的题材领域，可以申请专利的限制，因此它已举办的法律性质，物理现象，抽象的概念是没有专利标的。

不能只是想法或建议后获得专利。被授予专利权后，新的机器，制造等，正如人们所说的，而不是新机的想法或建议后。寻求专利实际的机器或其他题材的一个完整的描述是必需的。

新颖性和非显而易见的，获得专利的条件

为了1发明要获得专利，必须是新的专利法，其中规定，一项发明可以不被专利所界定的，如果：“（一）发明的已知或由他人在该国使用的，或专利或描述在此或外国印刷出版物之前，发明专利申请人及其“或”（二）发明专利或在印刷出版物或外国或在公共场所使用或出售在描述这个国家一年多前在美国申请专利。。 “

如果该发明已在印刷出版物中所述，在世界任何地方，或者如果它被称为日或之前由他人使用在这个国家的申请人，他/她的发明，专利不能得到。如果该发明已在印刷出版物中所述的任何地方，或在这个国家已经在公共场所使用或销售之前，在这个国家提出专利申请之日起超过一年，不能获得专利。在这方面，是无关紧要的发明时，还是印刷刊物或公众使用的是由他/她的发明人或由他人。如果发明者介绍在印刷刊物的发明专利或者使用该发明公开，或出售，他/她必须申请专利前一年已经过去了，否则将失去任何专利权。发明者必须向公众使用或披露的日期，但是，在国外许多国家为了维护专利权。

寻求获得专利的题材，即使是不完全由之前的艺术，涉及到一个或多个差异超过已知的最近类似的事情，一个专利可能仍然被拒绝，如果差异是显而易见的。寻求申请专利的标的物必须有足够的已使用或描述，在此之前，它可以说是不明显的有关发明的技术领域的普通技术人员有一个人从不同的。例如，替换为另一个一种颜色，或大小的变化，通常是不能被授予专利。

美国专利和商标局

国会建立了美国专利和商标局（美国专利商标局或办公室），以政府的名义发出专利。专利局作为鲜明局日期从1802年度时，在国务院，他们成为“专利警”之称的独立官方被放置在负责专利的。重组于1836年颁布的专利法的修订，专利局负责专利事务专员指定的官方。国务院专利局直到1849年，当它被转移到内政部。在1925年，它被转移到商务部，它是今天。专利局更名为专利和商标局于1975年，在2000年美国专利和商标局。

美国专利和商标局负责专利法，因为它们涉及到授予的发明专利，并执行与专利有关的其他职责。它审查专利申请，以确定申请人是否有权根据法律规定，以专利和授予专利时，他们都有权从最早出版发行的专利，2000年11月29日或之后提交的专利申请，在18个月申请日期，以及各种出版物的有关专利的专利记录任务;维护了公众的审查颁发的专利和记录搜索房间和用品的记录和其他文件的副本，和喜欢。类似的功能进行商标注册。美国专利商标局有侵权和专利执法的问题，没有管辖权。

该办公室的负责人是在知识产权，工商及科技局局长和美国专利和商标局（“董事”）董事。总干事的工作人员包括副主管工商局局长和美国专利商标局副处长，专员专利，商标处长，和其他官员。作为办事处主任，主任监管或执行的所有职责，尊重批准和签发的专利和商标注册;演习在美国专利商标局的整个工作的一般监督;规定的规则，工商及科技局局长批准在美国专利商标局的诉讼行为，为律师和代理人的承认;决定规则所订明的办公室前，呈请所带来的各种问题;执行必要和美国专利和商标的管理规定的其他职责办公室。

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。 The Web site also endeavors to educate independent inventors about fraudulent invention development and marketing firms and the scams that may affect these inventors and offers tips and warning signs on avoiding these scams. The site also publishes complaints against these firms and any responses received from them. The site further provides links to other USPTO sites, as well as links to other federal agencies.

The Inventors Assistance Center (IAC) provides the primary point of contact to the independent inventor community and the general public for general information about filing a disclosure document, a provisional patent application, or a regular, non-provisional patent application.

Publication of Patent Applications

Publication of patent applications is required by the American Inventors Protection Act of 1999 for most plant and utility patent applications filed on or after November 29, 2000. On filing of a plant or utility application on or after November 29, 2000, an applicant may request that the application not be published, but only if the invention has not been and will not be the subject of an application filed in a foreign country that requires publication 18 months after filing (or earlier claimed priority date) or under the Patent Cooperation Treaty. Publication occurs after the expiration of an 18-month period following the earliest effective filing date or priority date claimed by an application. Following publication, the application for patent is no longer held in confidence by the Office and any member of the public may request access to the entire file history of the application.

As a result of publication, an applicant may assert provisional rights. These rights provide a patentee with the opportunity to obtain a reasonable royalty from a third party that infringes a published application claim provided actual notice is given to the third party by applicant, and a patent issues from the application with a substantially identical claim. Thus, damages for pre-patent grant infringement by another are now available.

Oath or Declaration, Signature

The oath or declaration of the applicant (inventor) is required by law for a non-provisional application. The inventor must make an oath or declaration that he/she believes himself/herself to be the original and first inventor of the subject matter of the application, and he/she must make various other statements required by law and various statements required by the USPTO rules. If an application data sheet is filed, the USPTO rules require fewer statements in the oath or declaration. See title 37, Code of Federal Regulations, Sections 1.63 and 1.76. The oath must be sworn to by the inventor before a notary public or other officer authorized to administer oaths. A declaration may be used in lieu of an oath. Oaths or declarations are required for applications involving designs, plants, and utility inventions and for reissue applications. A declaration does not need to be notarized. When filing a continuation or divisional application a copy of the oath or declaration filed in the earlier application may be used.

The oath or declaration must be signed by the inventor in person, or by the person entitled by law to make application on the inventor's behalf. A full first and last name with middle initial or name, if any, and the citizenship of each inventor are required. The mailing address of each inventor and foreign priority information (if any) are also required if an application data sheet is not used.

Filing, Search, and Examination Fees

Patent applications are subject to the payment of a basic fee and additional fees that include search fees, examination fees, and issue fees. These fees are due at the time of filing the application. Consult the USPTO Web site at http://www.uspto.gov for the current fees. Additional filing fees are due if there are more than 3 independent claims, more than 20 total claims, or if the total number of sheets of paper in the specification and claims is over 100. If the application contains multiple dependent claims, additional fees are required.
If the owner of the invention is a small entity, (an independent inventor, a small business concern or a non-profit organization), most fees are reduced by half if small entity status is claimed. If small entity status is desired and appropriate, applicants should file a written assertion of small entity status in addition to paying the small entity filing fee. The written assertion may be a simple statement on a transmittal letter such as “Applicant claims small entity status.” Applicants claiming small entity status should make an investigation as to whether small entity status is appropriate before claiming such status.

In calculating fees, a claim is singularly dependent if it incorporates by reference a single preceding claim that may be an independent or dependent claim. A multiple dependent claim or any claim depending therefrom shall be considered as separate dependent claims in accordance with the number of claims to which reference is made.

The law also provides for the payment of additional fees on presentation of additional claims after the application is filed. When an amendment is filed which presents additional claims over the total number already paid for, or additional independent claims over the number of independent claims already accounted for, it must be accompanied by any additional fees due.
Most of the fees are subject to change in October of each year.

Specification (Description and Claims)

The following order of arrangement should be observed in framing the application:
(a) Application transmittal form.
(b) Fee transmittal form.
(c) Application Data Sheet.
(d) Specification.
(e) Drawings.
(f) Executed Oath or declaration.

The specification should have the following sections, in order:
(1) Title of the Invention.
(2) Cross Reference to related applications (if any). (Related applications may be listed on an application data sheet, either instead of or together with being listed in the specification.)
(3) Statement of federally sponsored research/development (if any).
(4) Reference to a ”Sequence Listing,” a table, or a computer program listing appendix submitted on a compact disc and an incorporation by reference of the material on the compact disc. The total number of compact disc including duplicates and the files on each compact disc shall be specified.
(5) Background of the Invention.
(6) Brief Summary of the Invention.
(7) Brief description of the several views of the drawing (if any).
(8) Detailed Description of the Invention.
(9) A claim or claims.
(10) Abstract of the disclosure.
(11) Sequence listing (if any).

The specification must include a written description of the invention and of the manner and process of making and using it, and is required to be in such full, clear, concise, and exact terms as to enable any person skilled in the technological area to which the invention pertains, or with which it is most nearly connected, to make and use the same.

The specification must set forth the precise invention for which a patent is solicited, in such manner as to distinguish it from other inventions and from what is old. It must describe completely a specific embodiment of the process, machine, manufacture, composition of matter, or improvement invented, and must explain the mode of operation or principle whenever applicable. The best mode contemplated by the inventor for carrying out the invention must be set forth.

In the case of an improvement, the specification must particularly point out the part or parts of the process, machine, manufacture, or composition of matter to which the improvement relates, and the description should be confined to the specific improvement and to such parts as necessarily cooperate with it or as may be necessary to a complete understanding or description of it.

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。

More than one claim may be presented provided they differ substantially from each other and are not unduly multiplied. One or more claims may be presented in dependent form, referring back to and further limiting another claim or claims in the same application. Any dependent claim which refers back to more than one other claim is considered a “multiple dependent claim.”

Multiple dependent claims shall refer to such other claims in the alternative only. A multiple dependent claim shall not serve as a basis for any other multiple dependent claim. Claims in dependent form shall be construed to include all of the limitations of the claim incorporated by reference into the dependent claim. A multiple dependent claim shall be construed to incorporate all the limitations of each of the particular claims in relation to which it is being considered.

The claim or claims must conform to the invention as set forth in the remainder of the specification and the terms and phrases used in the claims must find clear support or antecedent basis in the description so that the meaning of the terms in the claims may be ascertainable by reference to the description.

Models, Exhibits, And Specimens

Models or exhibits are not required in most patent applications since the description of the invention in the specification and the drawings must be sufficiently full, clear, and complete and capable of being understood to disclose the invention without the aid of a model.

A working model, or other physical exhibit, may be required by the Office if deemed necessary. This is not done very often. A working model may be requested in the case of applications for patent for alleged perpetual motion devices.

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.

Restrictions

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

考官的“行动”，这通常是邮寄给律师或代理人记录由办公室决定书面通知申请人。任何不利行动或任何异议或要求的原因均以在办公室的行动，并协助判断礼继续起诉他/她的申请，申请人可能有用的此类信息或参考。
如果要求保护的发明专利标的，索赔将被拒绝。如果考官认为所声称的发明缺乏新颖性或不同只在明显地发现在之前的艺术，也可能被拒绝索赔。这并非罕见的部分或所有考官的第一个办事处的行动被拒绝索赔;相对较少的应用程序允许提交。

申请人的回复

申请人必须以书面形式请求复议，必须清晰和明确指出，在考官的办公室行动应该的错误。申请人必须回答的每一个在事先厅行动反对和拒绝的理由。申请人的答复必须出现，整个是一个真正的企图推进的情况下，最终的行动或津贴。仅仅指控有错误，考官不会收到复议作为的正当理由。

在拒绝修改答复申请，申请人必须明确指出为什么他/她认为，修订后的索赔专利前引用或反对作出披露的艺术状态。他/她还必须说明如何索赔修订避免这种提法或反对。由申请人的答复后，将重新申请，申请人将被通知到索赔的状态，也就是是否索赔被拒绝，或反对，或是否允许索赔，以同样的方式后的第一次考试。通常的第二个办事处的行动将作出终审判决。
与考官的面试可以被安排，但接受记者采访时不排除在规定时间内答复办公室行动的必要性。

最终驳回

在第二次或以后考虑，拒绝或采取其他行动的可能作出最终决定。限于申请人的答复，然后拒绝任何索赔和进一步修订限制的情况下提出上诉。在反对或不涉及拒绝任何索赔要求的情况下，可以采取信访主任。回复最后的排斥反应或行动必须包括从拒绝取消，或上诉，每项索赔被拒绝，如果允许代表任何索赔，为形式的任何要求或反对的情况。在作出最终驳回，考官重复或排斥的国家所有的理由，那么适用于应用程序中的索赔。

申请的修订

在规则中指明的，申请人可以修改应用程序，或当具体由考官要求。
在办公室或邮件的第一个办事处的行动日期前收到的修订被称为“初步修订”，由1.115 37联邦管辖他们入境。答复修订的最后一个非办事处的行动均受病死率1.111。 37CFR 1.116和37CFR 41.33均受提出修订后的最后行动。

必须修订和规范，索赔，图纸，有需要时修订，以纠正不准确的描述和定义或不必要的词，并提供大量的信件之间的索赔，描述和绘图。所有的图纸或规范，所有增加的修正案必须不包括新的问题超越了原来的披露。问题，而不是在任何发现，涉及从起运地或原披露外，不能被添加到应用程序，即使补充宣誓或声明的支持，可以显示或只在一个单独的应用程序要求。

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。

Amendments to the claims are to be made by presenting all of the claims in a claim listing which replaces all prior versions of the claims in the application. In the claim listing, the status of every claim must be indicated after its claim number after using one of the seven parenthetical expressions set forth in 37 CFR 1.121(c). “Currently amended” claims must be submitted with markings (eg, underlining and strikethrough). All pending claims not being currently amended must be presented in the claim listing in clean version without any markings (eg, underlining and strikethrough).

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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