FAQs Patent Questions

Question:If two or more persons work together to make an invention, to whom will the patent be granted?

Answer:
If each had a share in the ideas forming the invention as defined in the claims – even if only as to one claim, they are joint inventors and a patent will be issued to them jointly on the basis of a proper patent application. If, on the other hand, one of these persons has provided all of the ideas of the invention, and the other has only followed instructions in making it, the person who contributed the ideas is the sole inventor and the patent application and patent shall be in his/her name alone.

Question:An inventor faces possible loss of benefits during his two-year retention period.

Answer:
The two-year retention period is not a “grace period” during which the inventor can wait to file his or her patent application without possible loss of benefits. It must be recognized that, in establishing priority of invention, an affidavit or testimony referring to a Disclosure Document must usually also establish diligence in completing the invention or in filing the patent application after the filing of the Disclosure Document.

Question:What is the difference between patents and exclusivity?

Answer:
Patents and exclusivity work in a similar fashion but are distinctly different from one another. Patents are granted by the patent and trademark office anywhere along the development lifeline of a drug and can encompass a wide range of claims. Exclusivity is exclusive marketing rights granted by the FDA upon approval of a drug and can run concurrently with a patent or not. Exclusivity is a statutory provision and is granted to an NDA applicant if statutory requirements are met.

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