Discussion:
What is the name of your state? CA
Can an existing idea that is in form and practice be patented
by someone other than the originator of the idea if the originator
has not patented the idea himself/herself?
lets say that I come up with an idea, and I establish
that I came up with it at a certain date prior to the second party attempting to patent the idea. A second party
tries to patent that idea:
*Would that second party have grounds for patenting the idea?
*If lets say that the US patent office did not know of the older idea and grants the patent, is the patent defendable? (the question here also touches upon the human aspect of granting patents, what if someone made a mistake?)
The idea in question is available to everyone for commercial or
non commercial use for free. Can someone patent that idea after
its in wide use?
thanks in advance
Answer:
Sounds like a great homework assignment. Is it??
Answer:
Originally posted by JETX
Sounds like a great homework assignment. Is it?? I apologize if this is a simple "homework" type question.
But I am not a lawyer or studying to be one. My question really stems out of internet technology and standards.
thanks for any info.. web sites, faqs or books.
Answer:
Old or new idea, you can not patent an idea. Period. Idea is worth a dim for a gross (12 dozen). In other word: an idea is worth its weight in gold, nothing. You can NEVER patent ANY idea.
You can only patent the implementation of an idea. An idea without an implementation is called a joke!
The idea that "man can fly" is a very old idea but cannot be patented.
"Pie in the sky" is also an idea that cannot be patented.
The idea that "a device that will hold sheets of paper together with out glue" is a very good idea. But is worth nothing. The "paper clip" is the implementation of the idea, which can be patented and was patented. The "stapler" is also the implementation of the idea, and also was patented.
The implemenation that allow "man can fly", for example, a jet pack, however can be patented.
You can patent only something that actually work.
Idea, old, free, public, commercial, non-commercial cannot be patented. Only FIRST implementation of idea can be patented.
Yes, ya gotta be the first ONE that come up with the implementation!
Answer:
atozcom is right, you can't patent an idea alone. But, assuming you have both conception -- the idea -- and reduction to practice -- building a prototype, or otherwise actually developing the ability to use the invention-- then you may have something patentable.
"Can an existing idea that is in form and practice be patented
by someone other than the originator of the idea if the originator
has not patented the idea himself/herself?"
In general, no. The U.S. has a "first to invent" patent system, so the first inventor -- that is, the first person to both "conceive" and "reduce to practice" an idea gets the patent.
However, if an inventor does not patent his invention, someone else in principle could, subject to:
1. If the invention has been publicly disclosed, there is an absolute bar to obtaining a patent if more than 1 year has elapsed since the disclosure to the public, and
2. If the first inventor doesn't file and the second inventor does, the second inventor could get a patent, but that patent could be invalidated by the first inventor showing that he invented first (this is a pretty complicated area of patent law, but this is kind of the gist of it).
"lets say that I come up with an idea, and I establish
that I came up with it at a certain date prior to the second party attempting to patent the idea. A second party
tries to patent that idea:
*Would that second party have grounds for patenting the idea?"
You have to establish more than just "coming up with an idea." The first inventor would actually have to establish conception and reduction to practice prior to the second inventor (again, its more complicated than this in reality, but this is basically it).
"*If lets say that the US patent office did not know of the older idea and grants the patent, is the patent defendable?"
Maybe. If the first inventor "rested on his laurels" and did not further his invention -- that is, he invented it and then forgot about it, or otherwise did nothing with it -- a second inventor could get a patent, and the first inventor would be estopped from invalidating the second patent on the grounds of first to invent. A patent is given as an incentive to publicize an invention -- if an inventor decides to keep something secret or otherwise not give anything to the public, he is not entitled to a patent.
On the other hand, if the first inventor was dilligently working on his invention and just didn't get his application in, assuming that there are no other statutory bars, he could prevail against the second inventor in court -- but he wouldn't get a patent himself, he could just get the second inventor's patent nvalidated. If both inventors filed, but the second inventor filed first, then the USPTO would conduct an interference proceeding to see who would get the patent.
Finally, if the second inventor KNEW of the first inventor and failed to disclose the first invetor's "prior art" to the USPTO, then the second inventor would be guilty of fraud, and could face civil and criminal penalties in addition to having his patent invalidated.
"The idea in question is available to everyone for commercial or
non commercial use for free. Can someone patent that idea after
its in wide use?"
The only person that can receive a patent is one who invents something. The inventor can come back and patent something, even if it is in wide use, if it has not been publically available fora year -- after the year, he would be barred from ever obtaining a patent.