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The Business Master (4th Edition)
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chap7
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1992-10-11
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Patents
U.S. patent law differs from the laws of most other
countries in several important aspects. The U.S. patent law
grants a patent to the first inventor even if another
person independently makes the invention and files an
application first. Most other countries award the patent to
the inventor who first files a patent application. The
United States also provides a one-year "grace period" that
does not preclude an inventor from obtaining protection
after an act such as publishing, offering for sale, or
using the invention, which would make the invention public.
Most countries have no such grace period to allow an
inventor to so disclose the invention prior to filing a
patent application. In countries with an "absolute novelty"
rule, a patent application must be filed before making the
invention public anywhere. Hence, even the publication of
an invention in a U.S. patent grant is a disclosure that
can defeat the right to obtain foreign patents, unless the
applicant is entitled to claim the "right of priority"
under the Paris Convention, as previously described.
Unlike the United States, many countries require that
an invention be "worked" locally in order to retain the
benefit of the patent. "Working" may require
commercial-scale manufacture within the country, or may be
met by importation of goods covered by the patent,
depending upon a particular country's law. The Paris
Convention permits penalties for non-working, which may
include a compulsory license at a reasonable royalty
followed by possible forfeiture of the patent for
continuing to fail to work an invention.
For an invention made in the United States, U.S. law
prohibits filing abroad without a foreign filing license
from the Patent and Trademark Office unless six months have
elapsed since filing a U.S. application. This prohibition
protects against transfer of information which might damage
the national security. The penalties for filing abroad
without following these requirements range from loss of
U.S. patent rights to possible imprisonment if classified
information is released. Recent procedural improvements
have significantly reduced the time it takes to obtain a
license in the majority of cases. In practice, this
requirement generally imposes a minimal inconvenience. In
addition, other export control laws require that a license
be obtained prior to the export of certain technologies,
even if no patent application is filed, or bar their export
altogether.