Читать книгу Intellectual Property Law for Engineers, Scientists, and Entrepreneurs - Howard B. Rockman - Страница 85

As alluded to previously, a significant number of foreign countries throughout the world utilize what is called the “absolute novelty” rule, which requires that a patent application be on file in that country before any public disclosure of the invention. In other words, there is no one‐year grace period as offered by U.S. law. However, based upon a series of treaties adhered to by the United States and most countries, procedures have been established to protect the patentability of inventions throughout the world.

Pursuant to these treaties, if an inventor files a patent application in the inventor’s home country, and a corresponding patent application is filed in a foreign country within one year of the date of the home country application filing date, the constructive filing date of the foreign patent application is the home country application filing date, or the “priority date,” under the provisions of the Paris Convention of 1883 (discussed in further detail in Chapter 16). By way of example as to how this system works, if you were to file an application for a patent on an invention on January 1 in the USPTO, and then publicly disclose that invention at a trade show, sales meeting‚ or otherwise on January 2, and then file patent applications in the European Patent Office, Japan, India, South Korea‚ and Australia on December 1 of the same year, the effective filing date of all of your foreign patent applications would be the same as your United States filing date, and therefore your patent application in those foreign countries would not be barred based upon your public exposure of the invention on January 2. There is a further treaty called the Patent Cooperation Treaty (PCT) which allows you to file a document within that one‐year period with the USPTO, that extends the time that you have to file foreign patent applications for a total of up to 30 or 31 months from your initial U.S. patent application filing date. PCT applications are also covered in Chapter 16.

Therefore, if you determine that your invention has potential worldwide acceptance and value, it is extremely important to ensure that there is no public disclosure of your invention before your U.S. or home country patent application filing date. After filing, you are free to publicly show and commercialize your invention. There are provisions in the United States Patent Law, such as Provisional Patent Application filings, which allow the patent attorney to make a rapid and proper application filing in the USPTO, and obtain an official filing date before you make any public disclosure of your invention. If necessary, the patent attorney can work to one or two day requirements in preparing a Provisional Patent Application. However‚ it is not recommended that you wait until such a late date to inform your patent attorney about the subject matter of your invention, and your desire to obtain protection in several countries.