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ting to
infringement of patents. In examining applications for patent,
no determination is made as to whether the invention sought to
be patented infringes any prior patent. An improvement
invention may be patentable, but it might infringe a prior
unexpired patent for the invention improved upon, if there is
one.
PATENT MARKING AND "PATENT PENDING"
A patentee who makes or sells patented articles, or a
person who does so for or under the patentee is required to
mark the articles with the word "Patent" and the number of the
patent. The penalty for failure to mark is that the patentee
may not recover damages from an infringer unless the infringer
was duly notified of the infringement and continued to infringe
after the notice.
The marking of an article as patented when it is not in
fact patented is against the law and subjects the offender to a
penalty.
Some persons mark articles sold with the terms "Patent
Applied For" or "Patent Pending." These phrases have no legal
effect, but only give information that an application for
patent has been filed in the Patent and Trademark Office. The
protection afforded by a patent does not start until the actual
grant of the patent. False use of these phrases or their
equivalent is prohibited.
DESIGN PATENTS
The patent laws provide for the granting of design patents
to any person who has invented any new, original and ornamental
design for an article of manufacture. The design patent
protects only the appearance of an article, and not its
structure or utilitarian features. The proceedings relating to
granting of design patents are the same as those relating to
other patents with a few differences.
See current fee schedule for the filing fee for a design
application. A design patent has a term of 14 years, and no
fees are necessary to maintain a design patent in force. If on
examination it is determined that an applicant is entitled to a
design patent under the law, a notice of allowance will be sent
to the applicant or applicant's attorney, or agent, calling for
the payment of an issue fee.
The drawing of the design patent conforms to the same
rules as other drawings, but no reference characters are
required.
The specification of a design application is short and
ordinarily follows a set form. Only one claim is permitted,
following a set form.
PLANT PATENTS
The law also provides for the granting of a patent to
anyone who has invented or discovered and asexually reproduced
any distinct and new variety of plant, including cultivated
sports, mutants, hybrids, and newly found seedlings, other than
a tuber-propagated plant or a plant found in an uncultivated
state.
Asexually propagated plants are those that are reproduced
by means other than from seeds, such as by the rooting of
cuttings, by layering, budding, grafting, marching, etc.
With reference to tuber-propagated plants, for which a
plant patent cannot be obtained, the term "tuber" is used in
its narrow horticultural sense as meaning a short, thickened
portion of an underground branch. The only plants covered by
the term "tuber-propagated" are the Irish potato and the
Jerusalem artichoke.
An application for a plant patent consists of the same
parts as other applications. A plant patent has term of 17
years.
The application papers for a plant patent and any
responsive papers pursuant to the prosecution must be filed in
duplicate but only one need be signed (in the case of the
application papers the original should be signed); the second
copy may be a legible copy of the original. The reason for
providing an original and duplicate file is that the duplicate
file is sent to the Agricultural Research Service, Department
of Agriculture for an advisory report on the plant variety.
The specification should include a complete detailed
description of the plant and the characteristics thereof that
distinguish the same over related known varieties, and its
antecedents, expressed in botanical terms in the general form
followed in standard botanical text books or publications
dealing with the varieties of the kind of plant involved
(evergreen tree, dahlia plant, rose plant, apple tree, etc.),
rather than a mere broad nonbotanical characterization such as
commonly found in nursery or seed catalogs. The specification
should also include the origin or parentage of the plant
variety sought to be patented and must particularly point out
where and in what manner the variety of plant has been
asexually reproduced. Where color is a distinctive feature of
the plant the color should be positively identified in the
specification by reference to a designated color as given by a
recognized color dictionary. Where the plant variety originated
as a newly found seedling, the specification must fully
describe the conditions (cultivation, environment, etc.)
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