What To Do
As described above, the patent application initiates the patent process. Before filing a patent, it is important to save any documents which show when you invented your device. Some people advocate you sending a copy of the text and drawings to yourself, which is fine, but if the envelope is ever opened (before presenting it to the Court during an infringement proceeding) you run the risk of destroying the evidentiary value of the document. Having the patent drawings witnessed and notarized is a way of preserving the time and date of your invention. This is referred to as “reduction to practice”. If you have plans or drawings showing how something is made, it is the same as if you made it yourself, or “reduced the item to practice”.
Under patent law, you are obligated to file a patent application when you complete the development of your invention. While it is recognized that all inventors do not have the financial abilities to immediately file a patent application on each of their inventions, the inventor cannot, however, invent something and then hide it away.
You have an obligation to bring your idea to the attention of the Patent Office, or you run the risk of being considered to have abandoned your idea. How much time is too much? Some Courts have said that the “small inventor” understandably takes a year or two to get ready for the patent process. Courts have said that two years may be acceptable, but five years is too much, and the invention is considered to be abandoned by the inventor. What about the time between? I guess the answer is “it depends”. The question then becomes, “do you want to be the test case”? The answer to that one is, “probably not”. It is, then, advisable that you attempt to secure patent protection a soon as you can, to avoid the problem of abandonment.
You should be aware that there is a “bar”, meaning a prohibition, to patentability for items which have been offered for sale by the inventor for more than one year before the date of the filing of the patent application. Also the device may not be patented or described/illustrated in a printed publication in this or a foreign country more than one year before the filing of the patent application in this country. This means that if you finish your invention and you approach another person, say your neighbor, and offer him or her the device for sale, that “offer for sale” starts the one year clock running. If you do not file a patent application within that one year’s time, you are legally barred from receiving a patent application. Another thing to consider is that there is a one year “bar” for “public use” of a device. The Courts have determined that an inventor of a corset, who gave the corset to his wife to wear and test, engaged in a public use, even though no one, other than his wife and himself, knew that she was wearing the corset. If you are to demonstrate it, or use your invention in the presence of others, it is wise if you have the persons witnessing the invention to sign a non-disclosure, which then is evidence that the use was not a “public use”. What then, exactly, is public use? I guess “it depends”. The question then becomes, “do you want to be the test case”? The answer to that one is, “probably not”.
It is important that you maintain any documents and records of the development of your invention. The United States Patent Office had, in the past, offered a disclosure document service. This has been discontinued. It is up to the inventor to provide the documentation to prove when he or she invented their claimed device.
Once the application is filed, it is “patent pending”. Patent Pending does not confer any “rights” on an inventor, it only puts the world on notice that a patent application has been filed. Simply put, a patent pending article may be copied. If you are an inventor and another party is exactly copying your patent pending article, you may file a petition to accelerate the patent prosecution. While you may file the petition, there is no guarantee that, in fact, the prosecution procedures will actually take less time. Moreover, the most recent changes in the law, which deal with accelerating the patent prosecution, require you to give up certain steps in the process. It is ultimately your choice as to how to proceed, but you should ask questions regarding what are the tradeoffs for accelerated prosecution.