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The Patent Process: How Is A Patent Obtained?

The First Step
The first step to obtaining a patent is to file a Patent Application, typically with the United States Patent and Trademark Office. Although not necessary, it is highly recommended that an inventor enlist the patent application services of a registered patent attorney or agent to draft and file the patent application. The application is required to include:

  • a detailed written description of what the invention is and how to make and use the invention
  • “claims” to the necessary aspects of the invention
  • drawings, if applicable
  • a declaration stating that the inventor(s) believe themselves to be the original and first inventor(s) of the subject matter of the application
  • a filing fee

Patent application services at the Hasse & Nesbitt LLC OfficeThe application also typically includes an explanation of how the invention differs from existing technology in the field (“prior art”).

The Second Step
Applications filed in the Patent and Trademark Office and accepted as complete applications are assigned to an Examiner with expertise in the area of technology of the invention. The examination of the application consists of a study of the application for compliance with the legal requirements for patentability, and a search through United States patents, prior foreign patent documents which are available in the Patent and Trademark Office, and available literature, to see if the claimed invention is new, useful and unobvious. A decision is reached by the Examiner in the light of the study and the result of the search.

The applicant is notified in writing of the Examiner's decision by an “Office Action” which is normally mailed to the attorney or agent representing the inventor. If the Examiner finds that the invention is not new or is obvious as compared to the prior art, or if the Examiner finds that the subject matter is not patentable, then the claims will be rejected. It is not uncommon for some or all of the claims to be rejected on the first action by the Examiner; relatively few applications are allowed as filed. The Examiner provides reasons for his or her decisions, and the applicant has an opportunity to provide a response with additional arguments or evidence, usually with the help of their attorney or agent, to support their application. The process of responding to Office Actions and defending one's patent application is known as “patent prosecution.”

Patent Searches: one of our patent application servicesThe applicant must request reconsideration in writing, and must distinctly and specifically point out the supposed errors in the Examiner's Office Action. The applicant must respond to every ground of objection and rejection in the Office action. The applicant's reply must appear throughout to be a serious and bona fide attempt to advance the application to an allowance.

After receiving the applicant's response, the application will be reconsidered, and the applicant will be notified if the claims are accepted or rejected, or objections or requirements made, in the same manner as after the first examination. The second Office Action usually will be made final. Further amendment is usually restricted, and the applicant's response is typically limited to appeal or to a request for continued examination (with a fee) in the case of rejection of any claim.

If it appears to the Examiner that two or more inventions are contained in a single patent application, and are regarded by the Examiner to be of such a nature that a single patent should not be issued for two (or more) inventions, then the applicant will be given a Restriction from the Examiner, requiring the applicant to limit the application to just one of the inventions. The other invention(s) may be made the subject of a separate application (known as a Divisional application) which, if filed while the first application is still pending, will be entitled to the benefit of the filing date of the first application. A requirement to restrict the application to one invention may be made before any further action by the examiner.


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