不请律师-自己申请专利(31): 进一步封锁3T系统

前文谈过，由国会制定的专利法第十七章要求某些发明要保密，也以许可证的形式限制了向国外申请专利。单看十七章，会容易让人看到一些空子可钻。比如你绕过美国专利局，直接到外国为你的3T系统申请专利，或者你用你的新型二踢脚和普通三踢脚拿到美国的许可证，然后，在与外国专利局的审查交流中，把3T系统的内容以任何形式告诉了外国专利局。针对此，联邦政府制定了一些规则，把这些空子都给封死了。就老爱的感觉而言，凡是流向外国专利局和PCT国际专利局的信息(包括途径的代理机构)，美国专利局都会，主动或被动地，会同其它政府机构搞保密审查。流向外国的其它地方(即非专利局和非PCT国际专利局)的信息，美国会怎么搞保密审查，老爱没有研究，故不予评论。

37 CFR PART 5 — SECRECY OF CERTAIN INVENTIONS AND LICENSES TO EXPORT AND FILE APPLICATIONS IN FOREIGN COUNTRIES

§ 5.1 Applications and correspondence involving national security.

…(f) Applications on inventions made outside the United States and on inventions in which a U.S. Government defense agency has a property interest will not be made available to defense agencies.

§ 5.2 Secrecy order. § 5.3 Prosecution of application under secrecy orders; withholding patent. § 5.4 Petition for rescission of secrecy order. § 5.5 Permit to disclose or modification of secrecy order.

§ 5.11 License for filing in a foreign country an application on an invention made in the United States or for transmitting international application.

(a) A license from the Commissioner for Patents under 35 U.S.C. 184 is required before filing any application for patent including any modifications, amendments, or supplements thereto or divisions thereof or for the registration of a utility model, industrial design, or model, in a foreign patent office or any foreign patent agency or any international agency other than the United States Receiving Office, if the invention was made in the United States and:

(1) An application on the invention has been filed in the United States less than six months prior to the date on which the application is to be filed, or

(2) No application on the invention has been filed in the United States.

§ 5.12 Petition for license.

(a) Filing of an application for patent for inventions made in the United States will be considered to include a petition for license under 35 U.S.C. 184 for the subject matter of the application. The filing receipt will indicate if a license is granted. If the initial automatic petition is not granted, a subsequent petition may be filed under paragraph (b) of this section.

(b) A petition for license must include the fee set forth in § 1.17(g) of this chapter, the petitioner's address, and full instructions for delivery of the requested license when it is to be delivered to other than the petitioner. The petition should be presented in letter form.

§ 5.13 Petition for license; no corresponding application.

If no corresponding national or international application has been filed in the United States, the petition for license under § 5.12(b) must also be accompanied by a legible copy of the material upon which a license is desired. This copy will be retained as a measure of the license granted.

§ 5.14 Petition for license; corresponding U.S. application.

§ 5.15 Scope of license.

… (e) Any paper filed abroad or transmitted to an international patent agency following the filing of a foreign or international application which changes the general nature of the subject matter disclosed at the time of filing in a manner which would require such application to have been made available for inspection under 35 U.S.C. 181 or which involves the disclosure of subject matter listed in paragraphs (a)(3)(i) or (ii) of this section must be separately licensed in the same manner as a foreign or international application. Further, if no license has been granted under § 5.12(a) on filing the corresponding United States application, any paper filed abroad or with an international patent agency which involves the disclosure of additional subject matter must be licensed in the same manner as a foreign or international application.