Declaration: A written statement made with the understanding that
willfully providing false information is punishable by fines or imprisonment or
both. Declarations may be used instead of an oath to verify that information
being submitted to the USPTO is true.
Declaratory Judgment: A lawsuit filed to determine where the plaintiff
is in doubt as to his legal rights. With respect to patents, this is a lawsuit
filed by someone against the patent holder asking the court to declare that the
inventors patent is invalid or that the plaintiff is not infringing the patent.
The possibility of such a lawsuit is a source of concern for poorly financed
patent holders who must be careful lest something they do be seen as accusing
others of infringement requiring them to defend against a lawsuit often at a
distant location and at great expense.
Dedication to the Public: A document signed by a patent owner filed in
the U.S. Patent and Trademark Office giving up all patent rights. This is
generally done when the owner believes the patent is invalid.
Dedication: An express or implied surrender to the public of an actual
or potential patent right.
Defensive Publication: Publication of the abstract of the technical
disclosure of a pending patent application if the applicant waived his or her
rights to an enforceable patent. The official program at the USPTO that allowed
defensive publication has been replaced by the Statutory Invention Registration
program.
Definiteness: A characteristic of a patent claim in which claim
language makes the scope of the claim clear to a person skilled in the art to
which the invention pertains.
Dependent Claim: This is a claim that makes express reference to and
depends on a prior claim and, thereby, incorporates by reference all of the
recitals of the prior claim. This claim must be read as if it contained its own
express recitals plus the recitals of every claim or claims from which it
depends. Claims that do not depend on another are referred to as independent
claims.
Depositing Correspondence: Filing written papers with a patent office.
Deposition: Testimony of a witness taken under oath, reduced to
writing and authenticated.
Design Patent: This type of patent covers the original and ornamental
aspects of a product. The prime focus is on the overall ornamental appearance.
Diligence: The activity required of an inventor and his attorney that
must have started just prior to the entry into the field of another
"inventor" and continue until the invention is reduced to practice,
either by building and testing it or filing an enabling patent application.
Diligence towards the building and testing of an invention typically includes
such activities as: ordering parts, fabrication of a prototype or working model,
testing of a prototype under the expected conditions of normal use of the
invention, etc. Diligence towards the filing of a patent application typically
involves preparation of an invention disclosure, hiring a patent agent or patent
attorney, with the patent agent or attorney taking up preparation of the patent
application in chronological order. Diligence must be able to be proven and
during an interference proceeding, corroborated by a person who is not an
inventor.
Direct Infringement: Making, using or selling a patented invention in
the jurisdiction within which the patent is enforceable, or importing a patented
invention or a product made using a patented process, during the term of the
patent.
Disclaimer: An express surrender to the public of an actual or
potential patent right. An entire patent can be disclaimed, or any claim or
claims in a patent or a terminal portion of the normal term of the patent.
Disclosure Document Program: A program of the USPTO wherein, for a
small fee, the USPTO will maintain a written document disclosing an invention
and signed by the inventor in confidence for a period of two years as evidence
of the date of conception. Diligent efforts to reduce the invention to practice
must still occur from a period before the entry of another inventor into the
field until the invention is completed. Many patent agents and patent attorneys
recommend that it is better to disclose an invention in confidence to a person
who is not an inventor in writing and then have the person sign and date the
disclosure indicating that he/she has "read, discussed and understood the
disclosure."
Disclosure: Communication to another of how to make and how to use an
invention to the extent necessary for the disclosure to meet its purpose. The
disclosure of a patent application must be sufficient for a person who is
skilled in the art to which the invention pertains to (1) understand what is
being claimed and (2) to enable the person to make and use the invention.
Discovery: An invention or, in litigation or interference proceedings,
the process of retrieving pertinent information from the opponent's records
under a court order.
Disposal: A term used in some countries, including the U.S., to mean
that an application has been abandoned, rejected or granted. The term is also
used to quantify an examiner’s productivity.
Division: If the patent office decides that an application covers too
large an area to be considered as a single patent, then the application is split
into one or more divisional applications. A divisional application has the same
specification as the "parent" but claims a different invention.
Divisional Application: A divisional application is a separate patent
application carved out of a prior pending application and discloses and claims
only subject matter originally claimed in the prior application. The divisional
application is entitled to a priority or filing date based upon the application
from which it has been divided.
Doctrine of Claim Differentiation: This is a judicially created rule
of construction that states that when two claims in the same patent have an
apparently similar or identical meaning, an effort should be made to adopt an
interpretation that will give them a different (as distinguished from identical)
meaning.
Doctrine of Equivalents: One literally infringes a claim where every
element of the claim is expressly satisfied by a device, process, or composition
of matter. Under the judicially created doctrine of equivalents, one may be held
liable as an infringer even if one does not literally infringe a patent. In
general, it is an equitable concept employed to prevent someone from getting the
benefit of the invention by making a minor change that avoids literal
infringement. See also the related concept of file wrapper estoppel.
Dominated: Dominated means that an invention is covered by one or more
claims in a patent.
Dominating Patent: A patent which has a claim broad enough to
encompass the subject matter of a claim in a subsequent patent is called a
dominating patent. The patentee of a dominating patent can prevent the patentee
of the subsequent patent from practicing his/her "improvement"
invention. The patentee of the subsequent patent can prevent the patentee of the
dominating patent from practicing the "improved" invention only, but
not the original invention.
Double Patenting Rejection: A rejection of a patent claim on the
grounds that it is an improper attempt to obtain more than one patent on the
same invention or on an obvious variant of the same invention.
Double Patenting: An inventive entity cannot obtain claims in two
patents directed either to the same invention or to an obvious variation of the
same invention. Where the inventions are identical, the second patent is
invalid. With respect to obvious variations, this rejection can be overcome by
filing a terminal disclaimer that, in effect, states that the second or any
additional patents to issue will expire on the same date as the first patent,
thereby eliminating any improper extension of the period of exclusivity
resulting from the second or additional patents. A challenge based upon double
patenting cannot be made where a second patent has issued as a result of a U.S.
Patent and Trademark Office restriction requirement and the filing of a
divisional application. In such a situation, the only reason more than one
patent was issued is that the U.S. Patent and Trademark Office compelled
limitation of a prior case to one embodiment.
Drawing: One or more specially prepared figures filed as a part of a
patent application to explain and describe the invention. Drawings are more
commonly found with inventions for mechanical or electrical devices. As a rule,
chemical patents and biotechnology patents will include chemical formulae
drawings or genetic code in the description of the invention and/or in the
examples.
Duty of Disclosure: A duty imposed on each individual associated with
the filing and prosecution of a U.S. patent application to disclose to the USPTO
all information known to that individual to be material to the patentability of
the claimed invention.
