Talk:International Data Encryption Algorithm: Difference between revisions

Revision as of 06:38, 25 May 2011

Revision as of 13:39, 25 May 2011

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:My understanding, based on talk with a real patent lawyer about another case, is that the "foreign priority" section of the USPTO records contains precisely which foreign applications have been designated by the applicant as giving the benefit of an earlier priority date, which filing date(s) serves (under the current rules) as the reference for the end of the 20 years protection period. That benefit, I was told, is avoidance of self-anteriority. Could this be an oversimplification, and could a foreign application be in "foreign priority" with no effect on the 20 years protection period? [[User:Fgrieu|Fgrieu]] ([[User talk:Fgrieu|talk]]) 05:20, 25 May 2011 (UTC)

:Formally, my reading of 35 U.S.C. is that, per sectiionsection 154(a)(2), the 20 years period starts on "the date on which the application for the patent was filed in the United States ''or'', if the application contains a specific reference to an earlier filed application or applications under section 120, 121, or 365(c) of this title, from the date on which the earliest such application was filed." (emphasis added); I action the right side of the ''or'' and posit that the Swiss patent filed 1990-05-18 (and the European/WIPO patent filed 2011-05-16) falls under section 120 as it is referencing section 363: "An application for patent for an invention disclosed (..properly..) in an application previously filed (..) as provided by section 363 of this title (..reading:) An international application designating the United States shall have the effect, from its international filing date under article 11 of the treaty, of a national application for patent regularly filed in the Patent and Trademark Office except (..)". [[User:Fgrieu|Fgrieu]] ([[User talk:Fgrieu|talk]]) 05:50, 25 May 2011 (UTC)

:About the restriction to "an international application ''designating the United States''" (emphasis added): when filing an EPO or WIPO patent application, the inventor/applicant specifies a list of Member States in which application of that patent is though. I think that can includes the USA, at least for WIPO. I have no idea if that exists in Swiss patent applications. [[User:Fgrieu|Fgrieu]] ([[User talk:Fgrieu|talk]]) 06:38, 25 May 2011 (UTC)

::Reading the [http://www.patentlens.net/daisy/KeyOrgs/1236/418/420/422.html Patent Cooperation Treaty] web site, it says that an international application designates certain countries, and is a separate step ''after'' the original patent is issued. (Both U.S. and Switzerland are signatories of the treaty since 1974, BTW.) The U.S. law, and the explanation at that web site, seems to refer to the date of the PCT application, not the original patent.

::{{Cquote|EXAMPLE: An Indian national files a patent application on the 1/1/2003 at the Indian Patent Office. On the 1/1/2004 he then files a PCT application with WIPO designating Brazil, Egypt and China as contracting states. After deciding that there are commercial opportunities for his invention in Brazil, the applicant decides to file in Brazil six months after filing a PCT application (1/7/2004). The filing date for the Brazilian application will claim priority from the date that it was first filed in India, i.e. 1/1/2003. The 20 year term of patent protection (if granted in Brazil) will extend from the date of the PCT application (from 1/1/2004 to 1/1/2024). The inventor still has up to 12 months remaining in order to decide whether or not to file in Egypt and China.}}

:: Given that a PCT must be filed within 1 year of the original patent application, and starts the clock on the patent validity on other countries, it sure looks like the 1991-05-16 date is the "just under the wire" PCT filing date, which [http://www.law.cornell.edu/uscode/35/365.html § 365] and [http://www.law.cornell.edu/uscode/35/363.html § 363] are referring to. [[Special:Contributions/71.41.210.146|71.41.210.146]] ([[User talk:71.41.210.146|talk]]) 13:39, 25 May 2011 (UTC)