Author Archives: Pat Werschulz

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About Pat Werschulz

Pat Werschulz is an intellectual property lawyer and a registered patent attorney at Werschulz Patent Law, LLC in Cranford, New Jersey.
EMAIL: pat@wplllc.com
BIO: About Pat
908.313.2347

Pass Go & Collect: How to Patent Board Games
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Pass Go & Collect: How to Patent Board Games | Pat Werschulz

The Story of Monopoly… A patent is a limited monopoly that the government grants for an invention. The government granted inventor Charles Darrow a patent US2026082A on the board game Monopoly in 1935. There’s some controversy about the 1935 patent: Darrow learned about another game called “The Landlords’ Game” that was patented in 1904 by a woman named Elizabeth Phillips. That game was created as an educational tool about monopolies in the landlord/tenant context. Darrow first played The Landlord’s Game in 1933; he changed the game enough to earn a patent on his version, Monopoly, two years later. Monopoly was one of many board games that became popular in the post-Depression 1930s, when people couldn’t afford to go out much.

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Foreign Filing License & Your Filing Receipt
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Foreign Filing License & Your Filing Receipt | Pat Werschulz

Most people who are filing for a patent in the United States don’t even realize that, at the same time, they’re applying for a foreign filing license. What’s that? Well, it turns out that if some or all of the inventive process takes place in the United States, before you can apply for a patent outside of the United States, you must be granted a foreign filing license.

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Brexit’s Effect on European Patents
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Brexit’s Effect on European Patents | Pat Werschulz

It’s official: the United Kingdom is leaving the European Union. While Brexit will have no effect on your U.S. patent (which protects your rights in the United States), as an inventor, you may be curious about how Brexit affects foreign patents, since many U.S. inventors have extended their patents by filing through the European Patent Office (EPO). When you file a patent application with the European Patent Office, that entity examines it against the prior art available and determines what claims are allowed. Up to this point, the process is pretty similar to the patent application process in the United States.

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What’s So Special About Tyler, Texas, Anyway?
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What’s So Special About Tyler, Texas, Anyway? | Pat Werschulz

Most people don’t even know where Tyler, Texas, is, but for patent litigators—that is, attorneys that try patent cases—it has become their home away from home. First, I need to give a little bit of background about the federal court system that a lot of people aren’t aware of. The federal courts have exclusive jurisdiction concerning patent and copyright cases in the United States. What does that mean? If you have a patent or a copyright and somebody infringes, i.e., copies you, you need to go to federal court to get justice. If you file a complaint in state court, it will be dismissed and you’ll be told, “Hey, you knocked on the wrong door. You need to go to federal court.”

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A Personal Story: My Path to Becoming a Patent Attorney (Part 2)
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A Personal Story: My Path to Becoming a Patent Attorney (Part 2) | Pat Werschulz

Last time, I explained the circumstances that led me to start law school after I “retired” from chemistry. Now the rest of the story. It’s very different to start law school when you’re…I’ll be kind to myself and use the word…”mature.” I was the second oldest student in my class, and I was the oldest woman. There literally were classmates who had been classmates of my sons. They would come up to me and ask if we were related, and I’d answer, “Yes, okay, I’m his mother.” So, I was thrown into competing with the younger generation.

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A Personal Story: My Path to Becoming a Patent Attorney (Part 1)
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A Personal Story: My Path to Becoming a Patent Attorney (Part 1) | Pat Werschulz

When I meet new clients, they don’t realize at first that being a patent lawyer is actually a second career for me. Since a lot of people find how I got to where I am today an interesting story, I’ve decided to share it with you, my readers. When I was in high school, I was captain of the debate team, and I seriously considered going into law. But back in the sixties, there weren’t many women who were going into law, and the ones who did were exceptional, like Ruth Bader Ginsburg.

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What Goes Into a Patent Application?
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What Goes Into a Patent Application? | Pat Werschulz

Many people are under the impression that drafting a patent application is just a matter of filling out forms, like any type of government application, and perhaps submitting a picture, as you do when you’re applying for a passport. Nothing could be further from the truth. In fact, preparing a patent application is a complex legal process. The United States Supreme Court has even said that drafting a patent application is the most complicated legal writing in the profession. A patent application has three main parts: the written specification, the drawings, and the claims. This is true of any type of patent applications, whether it’s for a utility application, a design application, or even (in those rare instances) a plant patent application.

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What is Patentable? The Phenomena of Nature Exception
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What is Patentable? The Phenomena of Nature Exception | Pat Werschulz

The answer to the question “what is patentable?” should be pretty straightforward, because the applicable law says: “a machine, a manufacturer, composition, or a process, or the improvements thereof, are patentable.” However, over the years, the courts have created very specific guidelines concerning what is or is not patentable. One exception to patentability is called the “phenomena of nature” exception. The Supreme Court discussed this exception in a 2013 case called Association for Molecular Pathology v. Myriad Genetics.

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What Should an Attorney Charge to File and Prosecute a Patent Application?
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What Should an Attorney Charge to File and Prosecute a Patent Application? | Pat Werschulz

Not surprisingly, one of the first questions clients usually ask me is “how much does it cost to get a patent?” While there are some government fees that apply regardless of which attorney you choose to file and prosecute (i.e. prepare the application and shepherd it through to issuance) your patent, the attorneys fees can vary. For a utility patent on a simple invention that doesn’t involve software, high tech, or extremely complicated chemistry, a budget of $12,000-$15,000 over the period that the patent is pending is a reasonable cost. This cost covers a substantial amount of work at two stages.

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Patent Law: Business As Usual
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Patent Law: Business As Usual | Pat Werschulz

{6 minutes to read} We have a new president. We have new members of Congress with a different distribution between the two parties. And probably before the Supreme Court sits for a new session in October, we’ll have a ninth justice. The question is: How are the changes in Washington going to affect patent law? First, a history lesson in patent law…

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FAQ: What Should I Expect When Meeting with a Patent Attorney?
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FAQ: What Should I Expect When Meeting with a Patent Attorney? | Pat Werschulz

{Read in 4:50 minutes} Many times when meeting with clients for the first time, they are very shy and say, “I’ve never met with a patent attorney before.” They don’t know what to expect or what they need to bring to the first appointment in order to discuss whether they should pursue a patent. There are some common things that every patent attorney will ask and review with potential clients. Some patent attorneys use what’s called a disclosure form, which asks the same questions that other attorneys go over in the initial meeting.

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How Can I Get My Patent Application Approved Faster?
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How Can I Get My Patent Application Approved Faster? | Pat Werschulz

{Read in 4:30 minutes} A question I often get is, “How long does it take to get a patent?” There may be business reasons to get your patent faster, such as to attract by showing investors you have a patentable idea. Or perhaps you just want to have patent protection before you introduce your product to the market. There may also be personal reasons; you need to move onto the next stage in your life and want to get this finished. So, how can you get your patent faster?

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Great News, Your Patent Application Has Been Rejected!
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Great News, Your Patent Application Has Been Rejected! | Pat Werschulz

{Read in 4:30 minutes} Whenever I start a conversation with a client with the phrase, “Good news: Your patent application was rejected,” I get: “What?” I always tell my clients from the very beginning that patent applications normally are rejected, and it’s a good thing. Over 90% of all patent applications have at least one rejection when they’re first examined by a patent examiner.

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DIY Patents: Some Things May Be Best Left to the Professionals
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DIY Patents: Some Things May Be Best Left to the Professionals | Pat Werschulz

Oftentimes I hear from people who have started the patent process on their own—called representing yourself. The legal term for that is pro se. I addressed some aspects in this issue a few months back, but I want to elaborate. Is This a Good Idea? I’ve also talked previously about the various reduced fee and pro bono opportunities for those inventors who do not have the financial resources to use a patent attorney to help them get a patent. Not everybody qualifies, so people are tempted to do it DIY.

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Freedom to Operate: Important for Every Type of Business
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Freedom to Operate: Important for Every Type of Business | Pat Werschulz

{4:50 minutes to read} Anybody who’s introducing a new product into the retail space needs to worry about whether that new product is infringing somebody else’s patent or trademark. Patent Issues Some of my clients who are in the process of getting a patent, or already have a patent, on a device don’t really understand it. They say, “I have a patent. Why do I need to worry if I’m infringing on somebody else’s?” Well, the truth of the matter is that most new things actually depend on pre-existing things. You may have something new, but elements of that may have existed and may be covered by somebody else’s patent.

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Part of the System: You and Your Voting Machine
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Part of the System: You and Your Voting Machine | Pat Werschulz

This year is an election year. It’s a very important federal election, with the office of the President at the top of the ticket. Everybody in the House of Representatives is up for election, as well as a third of the Senate. Although federal offices are on the line, voting is controlled by individual states. Each state has its own rules for voting and its own way of conducting the election. A Little History on Voting Machines When I was growing up, I used to go to the polls with my parents. I remember them being handed a paper ballot, then going into a booth, closing the curtain, marking the paper ballot, and returning it all folded up, then placing it into a ballot box.

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In the World of DIY, Should I Write My Own Patent Application?
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In the World of DIY, Should I Write My Own Patent Application? | Pat Werschulz

{6:50 minutes to read} While people can file patent applications themselves, it’s very difficult to get through the entire patent process without the help of a professional patent attorney or agent. There are many things on the internet and on TV to encourage people to DIY—do it yourself. There are programs on how to remodel your house, how to cook, and how to make clothes. You can find information through sites such as Pinterest and many others. When somebody comes up with an idea for an invention, the first question they ask is, “How much does it cost to get a patent?” When they find the answer, they think, “Well, why don’t I just try to do it myself?”

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How to Be a Pro with Pro Bono
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How to Be a Pro with Pro Bono | Pat Werschulz

{3:25 minutes to read} Many owners of startup businesses are understandably concerned about the cost of protecting their intellectual property. The patenting process can be expensive and a little bit scary, with an uncertain outcome. For those who are “bootstrapping” it—working with their own money, without borrowing or having partners or investors—it can be even harder. Such people usually can’t afford to pay for a patent attorney to help them with the application.

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Do I Need a Working Prototype Before Filing My Patent? Ask Edison!
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Do I Need a Working Prototype Before Filing My Patent? Ask Edison! | Pat Werschulz

{5:00 minutes to read} Today I want to talk about a book I just finished reading, called The Last Days of Night: A Novel by Graham Moore, about the patent wars between Thomas Edison and George Westinghouse.  Edison filed over 300 patent infringement lawsuits against Westinghouse. The Characters Thomas Edison – Attributed with having invented the light bulb, among many other things; patented the direct current (DC) lighting system.

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Has Your Fashion Design Fallen Victim to Gaps in Copyright Law?
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Has Your Fashion Design Fallen Victim to Gaps in Copyright Law? | Pat Werschulz

{5:20 minutes to read} Fall Fashion Week starts September 8, 2016, creating a lot of excitement and traffic in the New York area. That brings to mind: What type of intellectual property protections are there in the United States for fashion? Unfortunately, there’s not a lot to protect fashion design. If a designer comes up with a fabric pattern, that pattern can be protected by copyright law, but alas copyright is not allowed for useful articles—and clothing is considered a useful article.

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Design Patents: Form, Not Function
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Design Patents: Form, Not Function| Pat Werschulz

{4:10 minutes to read} A good design patent can be asserted in court and can protect a product. In previous blog posts, I’ve talked a lot about utility patents. Today, I’ll talk about design patents. Some of the laws and regulations that apply to utility patents also apply to design patents—but in many ways, design patents are unique unto themselves. Conceptually, it’s hard for people to wrap their brains around the difference between a utility patent and a design patent.

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What is the Cost to File a Utility Patent?
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What is the Cost to File a Utility Patent?|Pat Werschulz

{Read in 4 minutes} A common question people have is: How much does it cost to get a utility patent?The answer: It depends. There are many variables that can affect the total cost, such as the complexity of the invention and how much prior art already exists. That said, some aspects can be discussed in general terms. Keep in mind, we are discussing utility patents, not design patents. There are two components to filing a patent fee:

  1. The fee you pay the government
  2. The fee you pay your attorney

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Patent Trolls: Giving Our Licensing Scheme a Bad Name – Part 2
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Patent Trolls: Giving Our Licensing Scheme a Bad Name – Part 2|Pat Werschulz

{4:00 minutes to read} Three Billy Goats Gruff are crossing a bridge. A patent troll materializes on the bridge and blocks their way. “Pay me a licensing fee or I’ll throw you off the bridge,” he demands. In order to understand the phenomenon of so-called “patent trolls,” one must first understand what a Non-Practicing Entity (NPE) is. NPEs are often the innovators who perform all of the research and development that goes into an invention—but instead of marketing and selling it themselves, theylicense it to a third party.  Many of my clients are individual inventors who do not wish to start a company around their invention but are hoping to license to manufacturers to produce and distribute.

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Patent Trolls: Giving Our Licensing Scheme a Bad Name – Part 1
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Patent Trolls: Giving Our Licensing Scheme a Bad Name – Part 1 | Pat Werschulz

{4:00 minutes to read} On the first day of summer, the decision in the US Supreme Court case of Cuozzo Speed Technologies, LLC  v. Lee was handed down. The ruling affirmed the new practice of post grant reviews of patents already granted—which could have broad implications for patent owners, especially Non-Practicing Entities (NPEs), including so-called “patent trolls.” Post-grant review is a relatively new feature in US patent law that allows the Patent Trial and Appeal Board (PTAB) to invalidate patents which have already been granted.

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Need to Add Something New to Your Patent Application? Consider a Continuation-in-Part
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Need to Add Something New to Your Patent Application? Consider a Continuation-in-Part | Pat Werschulz

{3:80 minutes to read} We’ve previously discussed 2 types of child applications in regards to patents:divisional and continuation. The third type of child application you can file is called a “continuation-in-part.” A continuation-in-part is a little different from a continuation or a divisional in that we’re adding something new to the application. That is the rationale for naming “in-part.”

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The Strategy Behind Filing Provisional Patent Applications
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The Strategy Behind Filing Provisional Patent Applications | Pat Werschulz

{3:40 minutes to read} In our last article, we discussed the timeline of a provisional patent application. In this article, we continue to explore the strategy that can be applied to this type of application. Often, clients are wary about committing to full patent applications while in development of a product. However, during this development phase, many are concurrently engaged in public disclosure of their product. If this is the scenario, it may be prudent to file multiple provisional applications throughout the year, culminating in a utility patent that references them all. In so doing, all coordinating provisional applications will have an established date that’s prior when the non-provisional utility patent is filed. This is a smart strategy for a product that’s evolving.

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What Are the Steps to Get a Utility Patent?
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What Are the Steps to Get a Utility Patent? | Pat Werschulz

{2:45 minutes to read} When you are starting the patenting process for a utility patent, there are two types of applications to consider—provisional & non-provisional. Which one to start with is a matter of budget and strategy. Provisional Application The provisional patent application is often used when a client is danger of losing their rights due to public disclosure of the product and needs to expeditiously fix this issue. This route is faster, less costly, and requires slightly less preparation than a nonprovisional patent application would.

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How Long Will It Take Me to Get My Patent?
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How Long Will It Take Me to Get My Patent?|Pat Werschulz

{4 minutes to read} A question I am frequently asked is, “How long does it take to get a patent?” As with most things, the short answer is, “It depends.” I often say that a typical case takes about 3 years. To understand why, we need to look at patent law history. Previously, when a person received a patent, they had protection for 17 years after the date the patent was issued. That was different from the way it was done in the rest of the world. By the 1990s, it became apparent that business was really becoming global, and the United States needed to conform to global standards.

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Patent math: When your one invention turns into three
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Patent math: When your one invention turns into three| Pat Werschulz

{3 minutes to read} To understand divisional patents, one must understand how the patent office operates. When you file a patent, you pay a fee. Actually, you pay three fees bundled into one: 1. A filing fee is for the privilege of filing documents. 2. A search fee allows a patent-examiner to perform a beginning search on your invention 3. An examination fee allows the examiner to examine the results of the search and compare the findings against your invention to see if what you have submitted is new and nonobvious.

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Strategy for Starting Out With the Correct Patent Application!
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Strategy for Starting Out With the Correct Patent Application!| Patricia Werschulz

{3 minutes to read} In my latest article, I outlined how to move a patent application through a patent office in approximately a year’s time and the strategy involved in doing so. Personally, I believe a holistic patent strategy is imperative for my clients—an examination of all aspects of the client’s business and how that relates to the patent process needs to be considered collectively. First, intellectual property strategy should be linked to a client’s budget, marketing plan, and overall business plan. A patent strategy, in isolation, is not going to work well for a small business, start-up, nor solo-inventor. Pursing a patent is an expensive proposition requiring time and money: start-ups, as well as many other types of businesses, are often short on both. And so, I need to initially understand what the invention is, what the goals are, and how the client plans to achieve them.

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