不請律師-自己申請專利(30): 二踢腳的故事

英國詩人雪萊在西風頌中說，“冬天來了，春天還會遠嗎？”老愛在此狗尾續貂，要說，“元旦快到了，春節還會遠嗎？”我們在海外思念祖國，就一定會思念春節。思念春節，就一定會思念二踢腳。二踢腳的學名叫雙響高升炮，有來年‘指日高升’的祝福意思，比如說升至 senior scientist，升至full professor，知本家升至資本家等等。但也另有說法，就是年三十晚上踢一腳趕走動物“年”後，還不放心，再追上去補踢它一腳，故稱二踢腳。

言歸正傳，話說你發明了一種新型二踢腳，然後又加以改進，發明出普通三踢腳。才華橫溢的你在普通三踢腳的的基礎上再接再勵，又發明出一種巨牛的超級三踢腳。為什麽說它巨牛而且還超級呢？就是因為，如果你的超級三踢腳讓美國軍方一看，會讓美國軍方大吃一驚，說這哪裏是三踢腳？這簡直就是人類曆史上首創的三踢跨兵種立體攻擊係統(簡稱3T係統)。3T係統在戰場用起來，威力無窮。第一爆，踢倒一大片地麵部隊。接著往上竄，第二爆，踢掉一架飛機。再接著往上竄，第三爆，踢碎一顆衛星。(注:由於物理學的原因，把衛星踢掉下來不容易，隻能踢碎，碎渣繼續繞著地球轉。)

現在，你有三大發明，新型二踢腳，普通三踢腳，3T係統。如果你計劃申請美國專利和外國專利，你的三大發明將麵臨什麽樣的命運？請朋友們往下看。不愛讀英文的朋友，隻讀中文也能抓住大的要點。

CHAPTER 17: SECRECY OF CERTAIN INVENTIONS AND FILING APPLICATIONS IN FOREIGN COUNTRIES

35 U.S.C. 181 Secrecy of certain inventions and withholding of patent.

Whenever publication or disclosure by the publication of an application or by the grant of a patent on an invention in which the Government has a property interest might, in the opinion of the head of the interested Government agency, be detrimental to the national security, the Commissioner of Patents upon being so notified shall order that the invention be kept secret and shall withhold the publication of an application or the grant of a patent therefor under the conditions set forth hereinafter.

Whenever the publication or disclosure of an invention by the publication of an application or by the granting of a patent, in which the Government does not have a property interest, might, in the opinion of the Commissioner of Patents, be detrimental to the national security, he shall make the application for patent in which such invention is disclosed available for inspection to the Atomic Energy Commission, the Secretary of Defense, and the chief officer of any other department or agency of the Government designated by the President as a defense agency of the United States.

Each individual to whom the application is disclosed shall sign a dated acknowledgment thereof, which acknowledgment shall be entered in the file of the application. If, in the opinion of the Atomic Energy Commission, the Secretary of a Defense Department, or the chief officer of another department or agency so designated, the publication or disclosure of the invention by the publication of an application or by the granting of a patent therefor would be detrimental to the national security, the Atomic Energy Commission, the Secretary of a Defense Department, or such other chief officer shall notify the Commissioner of Patents and the Commissioner of Patents shall order that the invention be kept secret and shall withhold the publication of the application or the grant of a patent for such period as the national interest requires, and notify the applicant thereof. (專利申請的18月公開和授權時的公布都會讓地球人知道你的發明。如果對3T係統的這種公開或公布會be detrimental to the national security，那麽，無論美國政府對你的3T係統有無property interest，都將殊途同歸，i.e. 你的3T係統被命令保密。) Upon proper showing by the head of the department or agency who caused the secrecy order to be issued that the examination of the application might jeopardize the national interest, the Commissioner of Patents shall thereupon maintain the application in a sealed condition and notify the applicant thereof. The owner of an application which has been placed under a secrecy order shall have a right to appeal from the order to the Secretary of Commerce under rules prescribed by him. (如果對於3T係統的專利局內部審查都會jeopardize the national interest，那麽，你的3T係統的專利申請會被maintain in a sealed condition。)

An invention shall not be ordered kept secret and the publication of an application or the grant of a patent withheld for a period of more than one year. The Commissioner of Patents shall renew the order at the end thereof, or at the end of any renewal period, for additional periods of one year upon notification by the head of the department or the chief officer of the agency who caused the order to be issued that an affirmative determination has been made that the national interest continues to so require. An order in effect, or issued, during a time when the United States is at war, shall remain in effect for the duration of hostilities and one year following cessation of hostilities. An order in effect, or issued, during a national emergency declared by the President shall remain in effect for the duration of the national emergency and six months thereafter. The Commissioner of Patents may rescind any order upon notification by the heads of the departments and the chief officers of the agencies who caused the order to be issued that the publication or disclosure of the invention is no longer deemed detrimental to the national security. (除非美國碰到戰爭或緊急情況，3T係統的保密期限一般是一年一續。)

35 U.S.C. 182 Abandonment of invention for unauthorized disclosure.

The invention disclosed in an application for patent subject to an order made pursuant to section 181 of this title may be held abandoned upon its being established by the Commissioner of Patents that in violation of said order the invention has been published or disclosed or that an application for a patent therefor has been filed in a foreign country by the inventor, his successors, assigns, or legal representatives, or anyone in privity with him or them, without the consent of the Commissioner of Patents. The abandonment shall be held to have occurred as of the time of violation. The consent of the Commissioner of Patents shall not be given without the concurrence of the heads of the departments and the chief officers of the agencies who caused the order to be issued. A holding of abandonment shall constitute forfeiture by the applicant, his successors, assigns, or legal representatives, or anyone in privity with him or them, of all claims against the United States based upon such invention. (如果你違背命令，擅自泄密或向外國申請3T係統的專利，那麽你的美國申請就算放棄。這種放棄會導致美國作為國家可以“白用”你的3T係統，而你啥利益訴求也沒有。)

35 U.S.C. 183 Right to compensation.

(你有權為你的3T係統向美國政府要求合理賠償。)

An applicant, his successors, assigns, or legal representatives, whose patent is withheld as herein provided, shall have the right, beginning at the date the applicant is notified that, except for such order, his application is otherwise in condition for allowance, or February 1, 1952, whichever is later, and ending six years after a patent is issued thereon, to apply to the head of any department or agency who caused the order to be issued for compensation for the damage caused by the order of secrecy and/or for the use of the invention by the Government, resulting from his disclosure. The right to compensation for use shall begin on the date of the first use of the invention by the Government. The head of the department or agency is authorized, upon the presentation of a claim, to enter into an agreement with the applicant, his successors, assigns, or legal representatives, in full settlement for the damage and/or use. This settlement agreement shall be conclusive for all purposes notwithstanding any other provision of law to the contrary. If full settlement of the claim cannot be effected, the head of the department or agency may award and pay to such applicant, his successors, assigns, or legal representatives, a sum not exceeding 75 per centum of the sum which the head of the department or agency considers just compensation for the damage and/or use. A claimant may bring suit against the United States in the United States Court of Federal Claims or in the District Court of the United States for the district in which such claimant is a resident for an amount which when added to the award shall constitute just compensation for the damage and/or use of the invention by the Government. The owner of any patent issued upon an application that was subject to a secrecy order issued pursuant to section 181 of this title, who did not apply for compensation as above provided, shall have the right, after the date of issuance of such patent, to bring suit in the United States Court of Federal Claims for just compensation for the damage caused by reason of the order of secrecy and/or use by the Government of the invention resulting from his disclosure. The right to compensation for use shall begin on the date of the first use of the invention by the Government. In a suit under the provisions of this section the United States may avail itself of all defenses it may plead in an action under section 1498 of title 28. This section shall not confer a right of action on anyone or his successors, assigns, or legal representatives who, while in the full-time employment or service of the United States, discovered, invented, or developed the invention on which the claim is based. (如果你搞3T係統時，你是美國政府的全職雇員，你就沒有這種索賠權。)

35 U.S.C. 184 Filing of application in foreign country.

Except when authorized by a license obtained from the Commissioner of Patents a person shall not file or cause or authorize to be filed in any foreign country prior to six months after filing in the United States an application for patent or for the registration of a utility model, industrial design, or model in respect of an invention made in this country. (對於任何在美國搞的發明，包括你的新型二踢腳，如果你交了一份美國專利申請，那麽在6個月內，你不能向外國申請專利，除非你收到美國專利局的 Foreign Filing License。) A license shall not be granted with respect to an invention subject to an order issued by the Commissioner of Patents pursuant to section 181 of this title without the concurrence of the head of the departments and the chief officers of the agencies who caused the order to be issued. The license may be granted retroactively where an application has been filed abroad through error and without deceptive intent and the application does not disclose an invention within the scope of section 181 of this title.

The term "application" when used in this chapter includes applications and any modifications, amendments, or supplements thereto, or divisions thereof.

The scope of a license shall permit subsequent modifications, amendments, and supplements containing additional subject matter if the application upon which the request for the license is based is not, or was not, required to be made available for inspection under section 181 of this title and if such modifications, amendments, and supplements do not change the general nature of the invention in a manner which would require such application to be made available for inspection under such section 181. In any case in which a license is not, or was not, required in order to file an application in any foreign country, such subsequent modifications, amendments, and supplements may be made, without a license, to the application filed in the foreign country if the United States application was not required to be made available for inspection under section 181 and if such modifications, amendments, and supplements do not, or did not, change the general nature of the invention in a manner which would require the United States application to have been made available for inspection under such section 181.

(對於新型二踢腳，如果你交了一份美國專利申請，也拿到了Foreign Filing License。隨後你向外國申請專利，但是你要加上普通三踢腳的內容，並按照老愛的要求，你做好了幹部能上的工作，給外國申請起名叫“一種N踢腳及其製造方法”。那麽，普通三踢腳可以沒有新的Foreign Filing License，因為都屬於春節娛樂產品嘛。但你要在外國申請中加上3T係統的內容，那就不允許了。)

35 U.S.C. 185 Patent barred for filing without license.

Notwithstanding any other provisions of law any person, and his successors, assigns, or legal representatives, shall not receive a United States patent for an invention if that person, or his successors, assigns, or legal representatives shall, without procuring the license prescribed in section 184 of this title, have made, or consented to or assisted another's making, application in a foreign country for a patent or for the registration of a utility model, industrial design, or model in respect of the invention. A United States patent issued to such person, his successors, assigns, or legal representatives shall be invalid, unless the failure to procure such license was through error and without deceptive intent, and the patent does not disclose subject matter within the scope of section 181 of this title.

(對於新型二踢腳和普通三踢腳，如果你沒有Foreign Filing License而擅自申請了外國專利，那麽你美國相應的專利就無效，除非你的外國申請屬於through error and without deceptive intent)

35 U.S.C. 186 Penalty

Whoever, during the period or periods of time an invention has been ordered to be kept secret and the grant of a patent thereon withheld pursuant to section 181 of this title, shall, with knowledge of such order and without due authorization, willfully publish or disclose or authorize or cause to be published or disclosed the invention, or material information with respect thereto, or whoever willfully, in violation of the provisions of section 184 of this title, shall file or cause or authorize to be filed in any foreign country an application for patent or for the registration of a utility model, industrial design, or model in respect of any invention made in the United States, shall, upon conviction, be fined not more than $10,000 or imprisoned for not more than two years, or both.

(蓄意違背對於3T係統的法律要求，會罰款坐牢。)

35 U.S.C. 187 Nonapplicability to certain persons.

The prohibitions and penalties of this chapter shall not apply to any officer or agent of the United States acting within the scope of his authority, nor to any person acting upon his written instructions or permission.

35 U.S.C. 188 Rules and regulations, delegation of power.

The Atomic Energy Commission, the Secretary of a defense department, the chief officer of any other department or agency of the Government designated by the President as a defense agency of the United States, and the Secretary of Commerce, may separately issue rules and regulations to enable the respective department or agency to carry out the provisions of this chapter, and may delegate any power conferred by this chapter.