Medical Device Trends of the Next 10 Years - Part 2

In part one of this article, we talked about obesity and heart disease... two growing trends in America that will require new and innovative medical devices.

Today, we will look two more large-scale health issues that will require new technology, innovation and patents.

Medical Device Patents and Diabetes

Coming in as the seventh deadly killer in the U.S., Diabetes claims roughly 71,382 lives per year. 17.9 million Americans live with diabetes. And another 2.5% of the population does not know they have the disease.

In fact, since 1988 there has been an across the board increase of instances of diabetes regardless of age, sex or ethnicity.

Diabetes leads to greater incidences of heart disease and stroke, high blood pressure, blindness, kidney disease, neuropathy (disease of the nervous system) and even amputations.

And diabetes is a $175 billion per year (and growing) industry.

Surely, creative new patents and medical devices will need to be invented to fight this dreaded disease. What are some of the opportunities for inventors?

There are two types of diabetes. People are either born with type-1 diabetes, or they develop type-2 diabetes. Both versions result in the pancreas producing little or no insulin (a hormone needed to allow sugar to enter cells to produce energy).

Traditionally, diabetics are treated with insulin injections to supplement the lower amounts in the bloodstream. Perhaps there is some invention-in-waiting that is less painful/intrusive than injections? Or maybe you could invent an "insulin pill" that slowly releases insulin over the day? An insulin patch?

Medical Device Patents and Antibiotics

Nearly 100,000 people a year die from antibiotic resistant infections in the United States alone. And doctors are fearing it's only going to become more common.

The reason? Antibiotics are losing their potency.

Here's why, human beings are a vastly complex creature. We have multiple systems for pumping blood, breathing air and sending electrical systems back and forth. Bacteria are so primitive they don't even have a nucleus.

Our complexity betrays us. The simple antibiotics we've used for the last half century have prompted bacteria to evolve. To develop biological countermeasures that are rendering antibiotics harmless. This wouldn't be a problem if we were still discovering new antibiotics. But the vast majority of antibiotics were developed over twenty years ago.

What can inventors do?

Inventing new antibiotics is NOT the answer.

I think the more lucrative area for inventors is preventing bacterial infection in the first place (if you've seen the explosion in antibacterial products over the last twenty years, then you know what I'm talking about).

More and more people will be scared by news accounts of these new "super-bugs" and will look for different ways to protect themselves.

That's it for part two of this article. In part three we will look at the growing threat of cancer, and where the most help is needed...and...why you might want to consider how to help seniors live out their golden years.

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Software Patent Strategies If Federal Circuit Decisions Results in a Change to the Law

In an earlier article I discussed a recent Federal Circuit decision, and the possibility that it may be an outlier or the start of a change in United States law regarding software patents. If this decision is the start of a change, patent applications for software innovations would do well to anticipate likely changes in the law.

I don't know if or how software patent law will change, but I can make a good guess based on prominent decisions from the past. Judges like to at least appear to make decisions that are consistent with past rulings, even when they are dramatically changing the law. By looking at some important software decisions, one can anticipate and prepare for even significant changes.

In the Supreme Court's recent decision on software patents, the Court changed the law so as not to limit "software, advanced diagnostic medicine techniques, and inventions based on linear programming, data compression, and the manipulation of digital signals...." With such strong, recent support for protection for software inventions, a change in the law is unlikely that would eliminate software patents entirely.

However, an even earlier Supreme Court ruling, found fault with a software patent claim that was so abstract that it covered all uses of a particular conversion. If patentability for software innovations is narrowed, it is very likely that applicants will be required to claim a specific, well-defined use of an algorithm or process. Therefore applicants should include descriptions of very specific, limited uses of an algorithm or process in their applications.

The Supreme Court's earlier decision also held that a purely mental process that could be done by a person was unpatentable even if performed by a computer. So if software patents are restricted, it is also likely that processes that claim only steps that can also be done by a person will not be allowed. A machine must be integral to the invention.

To anticipate a change to the law that restricts patents for processes that can be done only by the mental effort of a person, one should include support for limiting claims to include hardware actions that can't be performed by a human. For example, a rendering of results, digital communications through specific hardware, or direct communications with a digital interface may be enough to distinguish a patentable invention from purely mental process.

Finally, there is international precedent for allowing operations to be patented that include a hardware limitation as part of a key inventive element. China and the European Patent Office ostensibly do not allow algorithms to be patented. Yet these jurisdictions regularly allow patents where hardware is key to an important step of the invention.

To anticipate a similar legal doctrine in the US, a software application should now include hardware descriptions and distinctions relating to the key operations and actions. If needed these descriptions and distinctions could be used to show that the invention is more than an abstract algorithm.

By including elements like these in a software patent application, an inventor can prepare for changes to the law that might otherwise prevent the granting of protection for a software invention. We don't know if the law will change, but being prepared never hurts.

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Why a Patent Attorney Should Conduct the Patent Search

Inventions need to be protected. Some fellows wouldn't think twice before trying to steal it from you. Legally put, infringe on your intellectual property. This is where the concept comes in. Patents are the exclusive rights that an inventor is granted to protect the invention from such fellows. The invention can vary from a machine, article of manufacturer or any new enhancements that the inventor might come up with. The rights are claimed in an official application whose first and crucial stage is the search.

Why You Need a Patent Attorney The method of getting hold of patents is not easy. It requires the expertise of a patent attorney. He is also called a patent agent or lawyer in some quarters. He is an expert in patent law and represents his/her clients in acquiring patents and also acts on all affairs and dealings that relate to the patent law and practices like filing an opposition. Application is an intricate process. This is because unlike a passport application where you are guaranteed of issuance as long as you fulfill the requirement, patents rely on more complicated information. For an application to be successful, it must not only explain the innovation in depth, but also elucidate specifically what this breakthrough would keep out other people from doing without permission of the patent holder. You don't have to worry yourself with these fine details because the lawyer should instead worry on your behalf.

The Patent Search: However, before seeking to engage the services of a patent attorney, you need to conduct a search. This is the first step in the application towards being granted patents and you can do it on your own. The search is essential as it will enable you aware that indeed the invention is new. The search, also called prior art, stands for all the information that has been made public in any form including preceding periodicals, publications, web publications, thesis papers or any other information anywhere in the world that has been made public. This means that you have to be as thorough as possible because there is no room for mistakes to ensure that indeed the new invention is actually unique. Not only does a thorough search protect and safeguard you from wasting your hard earned resources, but they also help underpin the potency if it is finally issued. This is the reason why a search by the office may not be as far-reaching as may be required due to the limited resources they have.

Since procuring a patent is tedious and will definitely eat up a lot of your resources, time and energy, any slip up in the process may jeopardize the whole process and may even bring down that business that you intend to build around your invention. This means that the services of a patent attorney come in handy here. A competent lawyer should be brought on board to handle a thorough search on your initial search. Furthermore, the patent attorney will conduct the search using the most economically viable methods available to do the whole search. The lawyers are more comprehensive in their searches strategically aimed at discovering not only what prior art can be established, but also help you establish what exactly can reasonably be expected to be patented. Also, agents will advice you whether it is okay for you to forge ahead with your application as it is or not.

To build a strong and serious patent application, one needs a strong foundation which can only be established via a thorough search. This can only be believed if it is conducted by a professional patent attorney. In the end, you save yourself a lot of money, effort and more importantly your invention.

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Intensified Methods for Resourceful Novelty Search

In general, if any significant information related to an invention has been found in prior-art, then patentability for that given invention won't be possible legally. Many times, patentability of an invention substantially depends on that time which has been consumed by the inventor during the novelty search. For instance, if someone is seeking for a significant competitive intelligence for some task or query. So there is a need to be more steadfast in novelty search methods.

Along with the use of precise and accurate search strings, there are so many other factors that also affect it through direct or indirect manner such as Anticipation for new claims, Objective fitness function, and Inferential programming etc.

Some of these factors are discussed below in a brief manner

Anticipation for new claims

Anticipation for new claims is an objective oriented process of imaginative speculation about the result or output. Anticipation for new claims is not always an inherent skill for someone. Its dexterity also emerges from the related novelty search experience.

Objective fitness function

Perceptibly, 'function' states about its property according to which each input is related to exactly one output. In case of novelty search, if we anticipate more than one significant search as a result.

So here, objective fitness function will become vital enough, that means, the input will be a single figure which remains meritorious, i.e., it might be the elegant and summarized form of imagined string search command for the set which is aimed (novelty search for an invention) to be achieved.

Inferential programming

Generally, inferential programming is used, where the some hypothetical logics have significance in novelty search. By using a metaphor such as a fitness function or a logical specification, a person will describe some novelty search-targeted results to the patent database.

For making this tool more efficient, novelty seekers have to adopt their most preferred choices first, when they start their search by choosing the largest or most preferred set of keywords because that will be definitely work as a strict fitness function.

Novelty search always seems an ultimate recent story that comes out from the historical background of a given particular field. Thus, if we look at a real life example, in football, term novelty, is used for a kick which has never been played before in a recorded game.

Above mentioned methods or tips make it more easy and worthy for novelty seekers. These factors will really boost up the incredible achievements and innovative intelligence among the novelty seekers.

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Are Patent Laws Impeding Innovation in the Software Sector?

The other day, I was discussing the challenges with patent law in the computer programming and software sector. My acquaintance, Troy LaClaire a fellow think tanker type were contemplating a new device for computer gaming and personal tech, which would require some rather unique coding and software to do something which has not been done yet, to our knowledge anyway. Well it turns out that Sony already has some patents, 8-years old for the application of video games, but apparently the patent was vaguely worded and could be interpreted as any computer device.

Yes, they definitely locked that one down tight and of course any large corporation in that sector would have done the same, well any smart company. Troy stated; "and yet it seems that they haven't really done anything with it and one reason why I think we need more patent limitations, as some people would be to afraid to proceed on such a project as they would be to worried about violating patents already in place."

Indeed, now that is a really good point, and yet, I guess I have many mixed emotions on the whole US patent and trademark office for the same reasons. Sometimes it helps industry to spend the money in research and development knowing that they have a patent they will recoup their money, and other times it just prevents innovation from moving forward, and prevents very decent technologies from coming to market. And all these lawsuits over patents are just a nightmare, and all those court awards do nothing but raise the price for consumers, often needlessly.

Troy also reminded me that our patent laws definitely have their benefits; in that companies can review patents someone else owns, and then contact that person on licensing the rights to the patent, without the designer risking losing the idea to someone else. However it has become a method for companies to prevent others from working on similar things, by patenting things that they may never produce.

Okay so, that is very true, and yes, sometimes our free-market loses, consumer loses, and humanity loses, which is not so good. Now then could our concept really make it in the real world, in that free market system, I often speak so highly about? We must also understand as Troy noted to me in our conversation that he doesn't see the overall system changing anytime soon, as there were just recently a number of changes, and even those were not huge changes although they will affect many companies with large patent portfolios, but as Troy says "so we must learn to work within the system and figure out how to use it for our own needs for the current time."

We also agreed as you perhaps do if you are in the software sector, that for these reasons, someday, I think we need to redo the patent system, and especially put in a limit on patents. Such a limit should allow for a longer patent period for something that is actually in production, but on the flip side have early expiration for things that are not being produced, especially software systems tech and consumer electronics.

Lastly, Troy brought up another decent point here; the main problem with software, is for a specific action there may only be so many different ways you can do something. Once all of these are patented, the small developer who may have a new product cannot release it because some small piece may violate a patent/copyright.

And so if a small developer doesn't do it, and a big corporation decides not to, then there is a chance that nothing gets done, thus, nothing gets created. See that point?

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Dispute Resolution Systems

Introduction

Dispute Resolution Systems (DRS) is a general term used to identify means of resolving disputes out of court, such as by mediation or arbitration. DRS programs are becoming increasingly important today as parties and the court system alike are now trying to find DRS programs that will take them out of the traditional legal system and solve their disputes in a quick and cost efficient manner. DRS reflects a serious effort to design workable and fair alternatives to traditional civil litigation.

Types of Dispute Resolution System

Dispute resolution processes fall into two major types:

1. Adjudicative processes, such as litigation or arbitration, in which a judge, jury or arbitrator determines the outcome. 2. Consensual processes, such as collaborative law, mediation, conciliation, or negotiation, in which the parties attempt to reach agreement.

Not all disputes, even those in which skilled intervention occurs, end in resolution. Such intractable disputes form a special area in dispute resolution studies.

Dispute Resolution in International Trade: Negotiation, Mediation, Arbitration and Legal Action

There are several types of DRS programs. The more familiar are:

1. Negotiation - This is the direct bargaining between two parties to a dispute where they attempt to resolve the dispute without the intervention of others. Many real estate brokers utilize this form of DRS without realizing it. An example may be when a disgruntled buyer calls after a walk through and finds that the seller broke the mailbox when he was moving out of the home. A real estate broker may offer to purchase a new mailbox in order to resolve the conflict. This resolution has been accomplished using the DRS program of negotiation.

2. Mediation - In mediation, a neutral third party assists the disputants in negotiating a mutually acceptable settlement. Mediators do not render decisions but help to facilitate the parties to the dispute to come to their own agreement by clarifying issues, utilizing persuasion and other conflict resolution strategies. Although there is no guarantee that the dispute will be resolved, surveys reveal that settlements are reached over 80% of the time.

3. Arbitration - Arbitration is probably the best known DRS method. In arbitration agreements, parties agree to submit existing or future disputes to a neutral third party, an arbitrator, who will decide how the dispute will be resolved. In binding arbitration, that decision is a final resolution of the dispute. In non-binding arbitration, the parties elect whether to settle with the arbitrator's decision or to continue on to litigation.

Benefits of DRS Program

• Faster than litigation. • Less expensive than litigation. • Discourages litigation of frivolous claims. • In mediation, parties do not forfeit their legal rights to arbitrate or litigate the dispute if mediation is unsuccessful. • Parties actively participate in the process and control outcomes. • Process contributes to long-term goodwill between brokers and their clients and customers. • Provides a service which brokers and salespeople can offer to their clients and customers. • Improves image of NAR, associations and members because they have taken the initiative to find and provide alternatives to litigation.

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Do You Have a Great Idea or Invention? Do You Need a Patent?

A patent is a legal document that protects the ownership of inventions, and prohibits other people from stealing it.

The document covers the majority of the invention such as how it looks, how it works and what materials it is made of. Obtaining a patent is very important if you want to prevent other people creating your invention without your permission.

How to qualify for a patent

To make a patent application your invention must meet strict criteria that will be robustly checked before any rights are granted.

Below are some of the rules your invention must adhere to.

Your invention must be unique and new. Modifying a pre existing product will not suffice.

You must be able to utilise the invention within an industry. Presenting the products uses within the application is required.

You cannot apply for rights for mathematical or scientific discoveries, theories, mental acts, a way of doing business, a way of performing, an animal, a plant and even some computer games.

Where to get help with your application

The list of do's and don'ts goes on. To be sure you have a valid claim for a patent, you could consider using patent application drafting services.

Employing the services of professionals will enable you to get drafted patent specifications done in a professional manner that will boost your confidence and ability to present your invention to potential investors. You may be a great inventor but does your paper work do your work justice? We have all watched episodes of dragons den, when we really feel for the candidates who have great products but they lack the knowledge of their industry or even their figures. By getting someone to help you, your focus can be on the invention without the stress of the paper work.

How to apply for a patent?

A patent application is very detailed and consists of several parts that must be filled in accurately.

Abstract

This is a short summary of the product, this is typically found at the front of a published document. This of this section as your unique selling point.

Description

An overall description of your invention. The description should include all the functions of the invention.

Claims

The claims section is the post vital part of the application. Your patentability will be decided from this section and therefore time should be committed to ensuring it is accurate.

Drawings

Simple 2d, black and white line based drawings of your product should be submitted for reference purposes only.

These drawings on your patent application will not dictate your actual design.

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Infringement Lawsuits and Role of a Patent Infringement Attorney

The term patent infringement refers to illegal use of a legally protected invention. Patent infringement is broadly classified into two types; direct infringement and indirect infringement. Infringement of an already existing invention or which performs the same functions of the patented invention comes under direct infringement. Indirect infringement is again divided into two categories; induced and contributory. Any action which enables the third person to directly infringe the patented invention comes under induced category. It includes, selling parts which can be used only for a patented invention or selling an invention with directions to use a patented process etc. Selling the components which were specifically manufactured for the patented invention comes under contributory infringement. In general, this type of infringement is found to be more serious than the former because the intention behind it is to take the undue advantage of the invention and to incur loses to the patent holder.

In general, infringement lawsuits are very costly and the fine may typically range from $ 1 million or more. There are situations in which a small infringement cost $2 - $5 million for a company. So irrespective of big or small, it may put a company out of business leading to bankruptcy. In case, if you lose a lawsuit, you are not only supposed to pay for the damages, but also for their attorney fee. So, instead of facing infringement issues later on, it is better to take preventive measures like hiring an attorney for patent infringement issues and doing research about similar inventions might prove to be very useful.

Apart from fine, these cases take long time and though the infringer hires a good attorney, who does most of the work, 10-20% of work has to be done by the infringer himself, which could otherwise be used for his business development. So, by all means, it is better to appoint an attorney for patent infringement issues during or after the development of the product and before marketing to avoid any hassles later on. While hiring an attorney, one should definitely look into his professional experience and his success rate. It is better to hire a lawyer who has a lot of experience in dealing infringement cases specifically. An experienced attorney will definitely know all the options and loopholes to get the desired outcome.

Similarly, the patent holder also needs to hire an attorney, as it is his right to prevent others from taking undue advantage of his invention. Since the infringer definitely search for the loopholes for proving the accusation to be false, by hiring an attorney, the patentee can be sure that the infringer pays for all the losses incurred by him. However, to win the case the patent holder must have a proof that infringer had been informed regarding the infringement. For this, the patent owner has to send notice either by filing an action or by sending him a letter or by marking the infringing product. Even if the infringer continues to take undue advantage of his invention, the patentee can file case against him in the Federal court to protect his right.

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Instructions for Hiring a Patent Attorney

When you invented something and you want to protect it, you need to hire a patent attorney. It is a good idea to hire an attorney for dealing with all the trademark issues. Trademark law is one of the specialized fields, where the attorney is qualified in special intellectual property matters.

Well, if you want to hire an attorney, you need to follow a few things which are described below. Initially, you must ask for referrals. You can ask your friends, colleagues, family members and neighbours about the patent attorney or if they hired any attorney for dealing with the trademark issues. If you have any referral, check out their credentials and hire them, if you are satisfied. Your colleagues can guide you on how to deal with the attorney. You will also get to know about the fee structure and mode of payment. You can talk to any general attorney and ask him to refer a patent attorney. In general, attorneys have good contacts with each other, so he would refer a competent patent attorney.

The next step is to call the state bar association. From there, you can ask for the list of attorneys certified by the state patent organization. You need to make sure that the attorney you are going to hire has never been involved in unethical and illegal activities and no case has been filed against him. There on, you need to conduct a thorough research in finding the best attorney, if you do not find any referral. You can look up through newspapers and online websites. Online websites would be the best source to find attorney, as you just have to make a few clicks and go through different websites.

You need to interview the attorneys whom you have selected through online or whose names are given to you by state bar association. You should conduct a personal interview with them and then make the final decision. You need to inquire whether he has dealt with a similar type of case before. You should also ask if he has any engineering background and in which subjects he has completed graduation.

You have to inquire about his certification, experience, types of inventions they have dealt with and any other expertise. Don't forget to judge the interpersonal skills. You can even ask if he can put you in contact with his previous clients. It would be advantageous for you to know the level of quality served by the patent attorney. You can ask several other queries about the cases he dealt with. You can talk to his previous clients and gain information.

The next step is to inquire about the costs involved. You should ask the attorney about his fee structure, mode of payment and any other expenses, you might be charged. You can ask him for the estimate of the entire expenses and the whole bill. You can even ask him to tell you the mode of payment; whether you will be allowed to pay in instalments or you have to pay at once. You need to trust your patent attorney and he should make sure that he is up to your expectations. Choose the attorney with whom you feel comfortable to discuss all the matters honestly.

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The Patent Application And How To Avoid Mistakes

There were 520,277 patents filed in 2010 by experienced inventors and talented amateurs alike. Many individuals who poured much time and vitality as well as money into designing and creating a product but now take the following step to learn the way to patent an idea. Take some time and study the process intimately from the US Patent office website. Skilled inventors normally take the time to study all available data that is required to protect an idea. Many inventors actually examine the process of how to patent an idea early in the game to avoid potential disasters.

The "ins and out" of the application

Some of the foremost components of a patent application are the title, technical disclosure, abstract, declaration, and the background. It's important that whoever writes the application have an intensive understanding of the law especially if the invention or idea is in a highly competitive field with many regulations on the particular industry. It isn't sufficient to know your idea and the industry from the inside out. You might also wish to shield your property with legal assistance when presenting your application to the U.S. Patent Office. You must study the application process inside and out.

The patent lawyer and the thorough search

Patent legal lawyers or patent brokers have years of expertise on this arena. She or he is an attorney focused on patent regulation with full qualifications to follow legal representation before the United States Patent and Trademark office. Most of these specialized lawyers may have technical backgrounds; usually in physics, biology, engineering or chemistry. A patent agent isn't a lawyer however he or she has handled patent cases before the USPTO and has passed the patent bar exam. They also tend possess a technical background with at the least an undergraduate degree. A lawyer and an agent both are qualified to represent you before the US Patent Office in a dispute or with a particular demand.

No search, however thorough, is foolproof. There's always a risk that pertinent patents aren't uncovered. You have to balance financial constraints against the thoroughness of the search. Generally, the search must be extensive to be of value but more work is involved. The cost will likely go up as patents that are more similar are recognized, studied and discounted from your search. Some ideas or inventions are simple while others are more complex.

The US Patent and Trademark Office can help

A lot of companies pay $500 minimum and upwards of $2,000 or more to commission an expert search of U.S. Patent and Trademark Office (USPTO) records, to ascertain if anybody has patented an identical idea. The records are available for you to conduct your own search. It may seem complex when someone is doing it for the first time.

After you've spent some time studying how to patent your invention, go ahead and take the next step. Get all your paperwork together and fill out the application with the USPTO. Make sure that you could have completely exhausted your patent search and filled out your documentation properly.

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Getting A Patent For Your Neat Idea

There are all sorts of problems in our everyday lives that need solving by creative thinkers. If you have a cool idea that can make someone's life a little better, that could be worth pursuing. I'm sure you probably already know that in order to take your idea from just a thought to a marketable product, you've got to secure a U.S. patent. But, exactly how does a creative thinker like you go about getting a patent?

Well, first of all you need to familiarize yourself with how the patent process works. The United States Patent and Trademark Office (USPTO) administers patents to inventors who can prove they've got a novel idea that no one else has done before. While many people say that there's really nothing new under the sun, in fact, in 2009 there were over 400,000 U.S. patents filed. So, you can see that other inventors are more than willing to keep solving the world's problems with original ideas.

When you're just beginning the patent process, the first thing you want to do is make sure that you document your entire idea on paper. This includes documenting every little feature about how your invention is designed and how it will work. The more details you record, the more unique the idea becomes. You see, while there may be another product that is similar, it cannot be exactly like yours. Your invention must be the only one of it's kind in order to qualify for patent protection.

Another thing you'll have to do is to search for patents that are already on file that may be similar or exactly the same as your idea. If someone else has already thought it up and filed for the patent, you're out of luck. Let's pretend that you are sitting on an idea for a really cool portable music player that can store digital music and it can also store a bunch of photos and other cool stuff. It's got a really sleek design and comes with detachable earplugs. Hmmm. That sounds an awful lot like an iPod, and you're right. You cannot file a patent for a portable music player that looks and functions exactly like what's already on the market.

However, if you came up with an mp3 player that could bounce like a ball and glows in the dark, now that would be something you could patent as unique. Anyway, you need to do a thorough patent search to ensure that your idea hasn't already been claimed by someone else. You can do this yourself, or pay a professional to conduct the search for you.

Once you've established that nobody else has thought of your bouncing music player, you want to spend some money on getting a prototype made. A prototype is a demo version of your product that allows you to see how it works in real life. Unless you find an investor, the money for this will have to come out of your own pocket.

Now it's time to go to the USPTO and file an application for a provisional patent. This is not the final patent, but a preliminary one that allows you to keep working on marketing your invention while giving you full legal protection. For instance, there's a company interested in marketing the bouncing music player, but they want you to make a few tweaks. Make the tweaks and then apply for the final patent. You are then ready to license it to the highest bidder and make good money.

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When To Use Secrecy Instead of a Patent to Protect an Invention

When an inventor has created an innovation, she traditionally patents the idea. Patenting allows her to prevent others from copying her idea for the life of the patent. It also prevents a later inventor who conceives of the idea independently from subsequently patenting the same idea and then preventing the original inventor from using her own invention.

However, there is another option for protecting an invention without filing for a patent, the option of secrecy. Using secrecy to protect an invention, the inventor simply does not disclose the details of the invention by filing a patent application or through publication or other public disclosure.

Secrecy is an effective protection when the important invention cannot be readily discovered. For example, chemical processes are often difficult to discover even if one knows the composition of the final product. The formulas and processes may be difficult to determine, even after expensive experimentation. Similarly, software inventions cannot be reverse engineered if they are kept securely protected on the inventor's own servers.

If another inventor later independently creates and patents the same invention, the original inventor has a defense against a charge of patent infringement because of her prior commercial use of the invention. This defense is available if the original inventor used the invention commercially a least one year before the subsequent inventor either filed the patent application or publicly disclosed the invention prior to patenting the invention. However, if the use was less than a year before the subsequent inventor filed the patent application, then the original inventor has no prior commercial use defense.

Protecting an invention by keeping it secret is probably a risky strategy if one's competitors are pursuing a similar product development strategy. They may develop the same invention and file for protection before a full year of commercial use has established the prior commercial use defense. And they are likely to try if one's own product using the invention is successful. However for inventions that are difficult to discover and that one believes competitors will not discover independently soon, secrecy is an excellent option.

An inventor choosing secrecy should treat the invention as a trade secret, limiting the internal dissemination of information about the invention and marking the information as secret or confidential. The inventor should also rigorously document the earliest date of commercial use.

The biggest advantage of secrecy is that it never expires. However, valuable secrets are often discovered independently and surprisingly quickly by competitors, or they are leaked or stolen. Competitive advantages do not usually go unnoticed and un-duplicated for long.

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Patent Law - Limiting a Competitor's Patent Application

Patent examiners do an excellent job of determining whether an invention should be granted patent protection. However, examiners typically have a very limited amount of time to examine a patent application. It is common for an application to be issued as a patent without the examiner considering important information that would likely sharply limit the scope of the patent. As a result, an overly-broad patent may be issued for technology that was in fact well-known and commonly practiced.

If a competitor is granted such an overly-broad patent, it could put you at a distinct competitive advantage. The competitor could force you to limit the features or utility of your product, or worse, sue you for patent infringement damages. This can result in serious competitive problems.

After a competitor receives an overly-broad patent, it is difficult and expensive to contain the damage. It often requires an expensive lawsuit in Federal Court or a reexamination proceeding to invalidate the patent. However, there is a much more effective way to prevent competitors from receiving overly-broad patent protection.

A competitor's patent applications will be published before they are examined and issued. This gives you the opportunity to influence the examination process, and make certain that the patent examiner considers all of the relevant information in deciding what breadth of protection to grant your competitor.

Patent applications are examined by comparing what is claimed as an invention against similar ideas and inventions that were disclosed before the patent application was filed. These prior ideas and inventions are referred to as prior art. A patent examiner typically reviews prior art that consists mainly of US patents and patent applications. Because of very significant restrictions on the time that an examiner has to search for prior art, he usually won't review previous products, trade publications, and technical articles that are relevant to the invention. As a result, important prior art is not considered when examining the patent application, resulting in overly-broad patents being granted.

By monitoring a competitor's patent publications, you can be alerted to pending patent applications that could be a competitive problem. If a potentially threatening application is found during this regular monitoring, then you have the opportunity to be certain that the examiner has all of the relevant prior art during examination of the competitor's patent.

You can submit prior art documents to the patent office that the patent examiner will consider when examining your competitor's patents. Along with the documents, you should include an explanation of exactly what in the document is relevant and how it should change the scope of protection that your competitor can receive. By presenting a few carefully chosen points, you can greatly influence the scope of your competitor's patent.

You should particularly submit documents that the examiner would be unlikely to find on his own, such a presentations from trade conferences, product specifications, and technical articles. These often pre-date the patent application, and so can sharply limit the application's scope. However, you should select the references carefully, and only present the most relevant information with that information clearly referenced and explained. Make it as easy and helpful for the examiner as possible.

Monitoring and submitting references against competitive patents is particularly important in highly competitive and litigious fields such as software patents, where a little prevention can be worth millions. Proactive action is much less costly than defending against an overly broad patent after that patent has been issued.

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