Patenting 101

a quick guide

While patent law can be complex, the fundamentals are not difficult to understand. The ability to cut through the "smoke and mirrors" that often surrounds the patent system will allow you to understand the different steps in the patenting process and how Flux IP can help. 

 

Step 1.  Filing a Provisional Patent Application.

The patenting process often starts with the filing of a provisional patent application by your patent attorney.  This type of application is never examined nor is it ever granted, lapsing 12 months after the date of filing.  Provisional applications are typically filed in the early stages of development of an invention, and often before the inventor has a full understanding of the invention or its worth in the market.

 

The rationale behind the filing of a provisional is to generate a potentially valid and early “priority date” for your invention.  This is the date at which your invention is assessed for novelty and inventiveness against the “prior art” (publications and acts that occurred before the priority date).

Step 2.  Filing an International (PCT) Patent Application.

As mentioned above, a provisional patent application lapses at 12 months after the filing date. If you wish to maintain the priority date of the provisional it is necessary to file a complete patent application before the 12 month lapsing date.  Normally, further technical material (such as data or further embodiments identified by the inventor) is added into the complete specification.

 

Where international patent protection is required, then a complete application under the Patent Cooperation Treaty (PCT) is generally filed before lapsing of the provisional application.  The main advantage of a PCT application is that it delays the time in which you need to enter national phase (see below), to 30 months from the earliest priority date of the application.

 

 

Step 3.  National Phase Entry

Before expiration of the PCT application, papers must be filed into the national patent office of each country for which patent protection is sought.  This is process is called "national phase entry", "national stage entry"  or "nationlization".  Flux IP can enter the national phase in your target countries simply, and cost-effectively.  Why pay more?

 

Step 4.  Examination and Grant of Applications.

After national phase entry your patent applications will be considered by an examiner in each national patent office.  Patent examiners are public servants having technical degrees (and often advanced degrees), who are trained in the patent law of their particular jurisdiction.  The Examiner’s aim is to prevent the patenting of inventions that do not meet the bar to patentability set in that country.  In performing his or her duty, the Examiner will assess the novelty and inventiveness of the invention claimed in the application, as well as other factors such as how fully the invention is described in the complete specification.  If the Examiner considers that the bar is not met, an adverse examination report is issued. 

 

Flux IP (or your current patent attorney if you prefer) assess the objections and may recommend various legal argumentation and/or amendment to the patent application in order to overcome the objections raised by the examiner.  This process of may go back and forth a number of times before the Examiner accepts the application.  After acceptance, the patent is granted pursuant to the payment of certain fees.

 

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