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Product Patents

Product Patents

Product patents : the pitfalls

According to a 1952 Congress statement, 'anything under the sun that is made by man' can be patented. From a business point of view, patents are particularly important in industries which require a lot of time and money to make new products. Pharmaceutical firms, for example, argue that the only way to recoup the enormous sums invested in developing drugs is to have exclusive rights to them. Their product patents have sparked fierce humanitarian debates about the cost of drugs in developing countries. A less controversial example might be the aeronautical industry - there would be no point in spending millions on developing a new plane if your competitors could knock it off too as soon as it was finished. There's always the danger of rivals 'designing around' your invention, though. In the US it's possible to ask - at the time of filing and only then - for your patent to remain unpublished. There are plenty of other things to bear in mind when applying for product patents, and doing so may be the difference between success and failure. That's why it's so important to get expert advice on your application. A design or plant patent application may be suitable, for example, instead of the more common but more expensive and time consuming utility patent application.


The process of examination is one of human judgment and it's vital that your account of your invention is as persuasive as possible. Anything that is too wordy, not wordy enough or badly phrased will make a negative impression on the examiner. Bear in mind that you can talk to the examiner face-to-face during the procedure, though - and a direct discussion can be invaluable for getting across your point of view. It's also important to reply straight away to any correspondence from the examiner. Applications to the international patent issuing authority - the World Industrial Property Organization (www.wipo.int) must be particularly precise, practically down to the punctuation. Luckily if you are applying via the US Patent and Trademark Office (USPTO), they will usually correct any minor mistakes before they send the application on. If you're considering applying for foreign product patents, make sure you can afford it. It's important in any case to consider the potential cost of an US patent application - which could run into thousands of dollars for a complicated and extended case. But it's even more important in the case of international applications, which cost much more. The rewards could be great if your product is likely to have an international market, but you have to be sure you will be able to see it through. The money spent on an application which has to be abandoned before it is finished are not recoverable.