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Filing for a United States Patent “Helpful Hints” U.S. Patent and Trademark Office Requirements for Patentability In order to receive a patent, an invention must meet the requirements set forth in the law. This includes the requirements of: 35 U.S.C. 101: Patentable Subject Matter

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requirements for patentability
Requirements for Patentability
  • In order to receive a patent, an invention must meet the requirements set forth in the law.
  • This includes the requirements of:
    • 35 U.S.C. 101: Patentable Subject Matter
    • 35 U.S.C. 102: Novelty
    • 35 U.S.C. 103: Obviousness
    • 35 U.S.C. 112: First Paragraph: Enablement
    • 35 U.S.C. 112: Second Paragraph: Definiteness
requirements for patentability3
Requirements for Patentability
  • Manual of Patent Examining Procedure (MPEP)
    • uspto.gov/web/offices/pac/mpep/mpep.htm
  • (Laws and Rules)
    • uspto.gov/web/patents/legis.htm
35 u s c 112 second paragraph definiteness
35 U.S.C. 112 Second Paragraph: Definiteness
  • The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
claims analysis
Claims Analysis
  • A method of making an asphalt concrete composition, comprising the steps of:

(a) heating a mineral aggregate to a temperature of 325°to 500°F, preferably between 350°to 450°F.

(b) admixing said mineral aggregate with a rubber aggregate to form a mineral/rubber aggregate admixture.

(c) admixing a fibrous material with said aggregate admixture to forma dry mix.

(d) admixing said asphalt cement with said dry mix to form a hot, wet mix.

claims analysis6
Claims Analysis
  • A method of making an asphalt concrete composition, comprising the steps of:

(a) heating a mineral aggregate to a temperature of 325°to 500°F, preferably between 350°to 450°F.

(b) admixing said mineral aggregate with a rubber aggregate to form a mineral/rubber aggregate admixture.

(c) admixing a fibrous material with said aggregate admixture to forma dry mix.

(d) admixing said asphalt cement with said dry mix to form a hot, wet mix.

claims analysis7
Claims Analysis

(a) Preferred ranges or materials in same claim are not longer considered to be indefinite.

(d) No antecedent basis for “said asphalt cement”

claims analysis8
Claims Analysis

2. The method according to claim 1, wherein the first time period is 15 seconds.

claims analysis9
Claims Analysis

2. The method according to claim 1, wherein the first time period is 15 seconds.

Problem:

Lack of antecedent basis for “the first time period.”

claims analysis10
Claims Analysis
  • The method according to claim 1, wherein said temperature is between 300°to 360°F.
claims analysis11
Claims Analysis
  • The method according to claim 1, wherein said temperature is between 300°to 360°F.

Problem:

The lower end of the temperature range is outside of the range set forth in claim 1 (325°to 500°F).

claims analysis12
Claims Analysis

4. The method of claim 3, wherein step (b) includes the step of sizing said rubber aggregate prior to admixing with said mineral aggregate into 15-45 micron particulates.

claims analysis13
Claims Analysis
  • An asphalt concrete composition, comprising in percent by weight, 1%-10% rubber aggregate; 0.055-0.5% fibrous material such as antistatic treated polyester fiber, 1%-8% asphalt cement; and the remainder mineral aggregate.
claims analysis14
Claims Analysis
  • An asphalt concrete composition, comprising in percent by weight, 1%-10% rubber aggregate; 0.055-0.5% fibrous material such as antistatic treated polyester fiber, 1%-8% asphalt cement; and the remainder mineral aggregate.

Problem:

The “antistatic treated polyester fiber” is considered to be a preferred material. It is not indefinite.

claims analysis15
Claims Analysis

6. The composition of claim 5, wherein the composition has 1% - 5% rubber aggregate, 0.05%-0.4% fibrous materials; and 4%-6% asphalt cement.

claims analysis16
Claims Analysis
  • The composition of any of claims 5 or 6, wherein said rubber aggregate has a particle size of between 15-45 microns.
  • The composition of any one of claims 5-7, wherein said polyester fibers are 0.25 inches to 0.5 inch in length and about 0.00085 inch in diameter
claims analysis17
Claims Analysis
  • The composition of any of claims 5 or 6, wherein said rubber aggregate has a particle size of between 15-45 microns.
  • The composition of any one of claims 5-7, wherein said polyester fibers are 0.25 inches to 0.5 inch in length and about 0.00085 inch in diameter?
claims analysis18
Claims Analysis

Problem:

  • Claim 8 is missing a period.
  • Claim 8 is also improper because it depends from another multiply dependent claim.
claims analysis19
Claims Analysis
  • The asphalt concrete composition as substantially described herein.
claims analysis20
Claims Analysis
  • The asphalt concrete composition as substantially described herein.

Problem:

The claim does not clearly define the invention.

provisional patent applications
Provisional Patent Applications
  • The provisional application must be made in the name(s) of all of the inventor(s).
  • It can be filed up to one year following the date of first sale, offer for sale, public use or publication of the invention.
  • (These pre-filing disclosures, although protected in the United States, may preclude patenting in foreign countries.)
provisional patent applications22
Provisional Patent Applications
  • A filing date will be accorded to a provisional application only when it contains:
    • A written description of the invention, complying with all requirements of 35 U.S.C. §112 ¶ 1.
    • Any drawings necessary to understand the invention, complying with 35 U.S.C. §113.
provisional patent applications23
Provisional Patent Applications
  • To be complete, a provisional application must also include the filing fee as set forth in 37 C. F. R. 1.16(k) and a cover sheet identifying:
    • The application as a provisional application for patent.
    • The name(s) of all inventors.
    • Inventor residence(s).
    • Title of the invention.

– continued –

provisional patent applications24
Provisional Patent Applications
  • To be complete, a provisional application must also include the filing fee as set forth in 37 C. F. R. 1.16(k) and a cover sheet identifying (cont.):
    • Name and registration number of attorney or agent and docket number (if applicable).
    • Correspondence address.
    • Any U.S. government agency that has a property interest in the application.
nonprovisional patent applications
Nonprovisional Patent Applications
  • A nonprovisional utility patent application must be in the English language or be accompanied by a translation in the English language.
  • Must be typewritten or produced by a mechanical (or computer) printer.
  • The paper size must be either:
    • 21.6 cm. by 27.9 cm. (81/2 by 11 inches); or
    • 21.0 cm. by 29.7 cm. (DIN size A4).
nonprovisional patent applications26
Nonprovisional Patent Applications
  • A complete nonprovisional utility patent application should contain the elements listed below, arranged in the order shown.
    • Utility Patent Application Transmittal Form or Transmittal Letter
    • Fee Transmittal Form and appropriate fees
    • Application Data Sheet (see 37 CFR§1.76)
    • Specification (with at least one claim)
    • Drawings (when necessary)
    • Executed Oath or Declaration
    • Nucleotide and/or Amino Acid Sequence Listing (when necessary)
patent applications
Patent Applications
  • Additional Information regarding the filing of a patent application:
    • uspto.gov/web/offices/pac/utility/utility.htm#intro
  • Where to down load forms
    • uspto.gov/web/forms/index.html#patent
inventor resources
Inventor Resources
  • uspto.gov/web/offices/com/iip/index.htm
patent searching
Patent Searching
  • uspto.gov/patft/index.html
  • Advanced Search:
    • A number of fields in patent database may be search, but documents before 1976 can only be searched by U.S. Classification and Patent Number. The “text database” does not go back that far.
patent searching30
Patent Searching
  • East/West
  • For the more advanced searcher:
    • More powerful search engines and more advanced search engines are available.
    • However, these are available at the USPTO (Public Search Room) or at certain Patent Depository Libraries.
patent searching31
Patent Searching
  • East/West
    • More complete databases
      • Derwent
      • EPO
      • JPO
      • OCR USPat
patent searching32
Patent Searching
  • East/West
    • More powerful search engine
      • Faster
      • Handles complex search terms better
      • Proximity operators
      • Better truncation
patent searching33
Patent Searching

USPTO.gov

  • Search operators:
    • AND, OR, ANDNOT
  • Searching particular fields:
    • e.g., Abst/ ccl/
  •  Right truncation “$”:
    • Plant$
  • Searching phrases “….”:
    • AN/“General Motors”
  • Searching combinations:
    • AN/“General Motors” and ABST/transmission$