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Certain laboratory procedures are recommended for legal reasons.
As explained
in more detail in OTM Procedures,
Policies, & Information; section 3: Patentability, a U.S. patent
is granted to the inventor who was the first to conceive the inventions.
Hence, a properly maintained inventor's laboratory notebook is
often the first evidence of conception.
| 1. |
When
properly kept, a laboratory notebook is important because
it establishes a permanent record which can be referred to
in the future to prove what was done during the course of
a project, and particularly what inventions were made and
when. When improperly kept, it may fail to prove what was
conceived or done, and it may fail to fix important critical
dates. |
| 2. |
Assuming
that an invention is made during the course of a research
project,
the date of "conception" and "reduction to practice" may
become important. Generally, a sketch and a brief written description are sufficient
to establish conception. Reduction to practice can be established only by the
actual construction and successful testing of a device incorporating
the invention.
During
prosecution of a patent application before the Patent Office,
or even at times after issuance of a patent, another applicant
for a patent
may initiate a contest referred to as an "interference", to determine
who was the first inventor. Each party has an opportunity to take depositions
and to submit documentary proof to show their dates of conception and reduction
to practice. The patent for the invention is then awarded in accordance with
the facts proven by this evidence. |
| 3. |
Even
if the subject matter of a research project is not made on
the basis of a patent application, it may become important
to prove what was done. For example, someone else may obtain
a patent on subject matter reduced to practice during the
course of the work. In patent infringement litigation which
may follow, the earlier laboratory work may establish a good
defense. In another situation it may be desirable to prove
whether or not an invention occurred in the course of a specific
research project. |
| 4. |
From
a legal standpoint, a laboratory entry should be competent
to prove certain facts, such as the conception of an idea,
the testing of a model, and the results of the test. It is
possible for a laboratory entry to be so vague and lacking
in clarity that it is not competent to prove such matters.
For example, the entry may be so fragmentary that it is meaningless
by itself, and can only be made intelligible when it is interpreted
by the author. Such an entry is very little better than ordinary
recollection without the aid of a document. Also, entries
can be kept in such a manner that it is difficult to determine
when the entry was made. Also, it may be an entry known only
to one party, that is, not witnessed or explained to anyone
else who is available to serve the essential function of corroborating
witness. |
| 5. |
The
ideal notebook is one having all of the entries in ink or
other permanent medium, using the standard laboratory book
having permanent pages. All of the entries are identified
with respect to the particular project for which the work
was done. The entries include all formulae or diagrams and
sketches of circuits and equipment which were considered during
the project, including the ones actually built and tested.
Diagrams and sketches should be accompanied by explanatory
memoranda sufficient to identify and explain the subject matter.
Another investigator, by looking over these entries, should
be able to determine the nature of the project, when it was
commenced, what ideas were considered during the project,
the compounds made or circuits and equipment actually built
and tested, the results of the tests, the dates with respect
to all of the above, and the final conclusions. |
| 6. |
Even
though a laboratory notebook may not be kept in ideal fashion,
the entries may be valuable at some future time provided certain
simple safeguards are observed. The following comments may
be helpful to avoid more common
mistakes: |
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a) |
All
data should be identified with respect to the project to which
it relates. If possible, this should be by a project or experimental
number;
otherwise by a brief descriptive heading. |
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b) |
Entries
should be consecutively dated. At least one other investigator,
not a coworker or joint inventor, should regularly look over
the entries and witness the same by applying his signature
and date. |
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c) |
In
general, fragmentary diagrams or sketches, or diagrams and
sketches without any explanatory notes, should be avoided.
Circuit diagrams, for instance, should be as comprehensive
as possible, using blocks or similar notations to indicate
conventional parts. |
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d) |
Taking
one entry by itself, it should, insofar as possible, be intelligible
to another investigator without specific explanation. |
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e) |
Loose
pages or inserts carrying sketches or other information should
be avoided. If a sketch or note is made on a loose piece of
paper, and you wish to place it in your book without making
another entry, it should be
permanently affixed in the notebook. |
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f) |
Investigators
are encouraged to maintain individual notebooks. However, when
there are two or more investigators working on the same project,
they should not try to split entries between two or more laboratory
books. One book should be complete by itself. When two or more
investigators are making entries in the same book they should
initial their own entries. |
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g) |
Notations
should be made of the progress and completion of compounds,
assemblies or models which are being prepared for testing.
These entries should make clear, as by reference to a previous
sketch , as to how the
compound or equipment is being made.
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h) |
Successful
testing of a compound or particular setup or piece of equipment
is "reduction to practice" as pointed out above,
and is an important date. Notations of such tests should be
made, with the compound or equipment being identified, and
with comments concerning the results of the test. Tabulated
test data can be given if available. Avoid unnecessary derogatory
remarks about tests, such as the notation "NG". |
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i) |
Erasures
should be avoided. If an error has been made, it is better
to
cross it out, and make a new entry. |
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j) |
While
records in pencil are better than no records, it is best to
have
them in permanent medium, such as ink or indelible pencil. |
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k) |
Entries
should never be changed or enlarged at a later date, unless
the nature of the change is clearly indicated and dated by
itself. Here again, it is better to make a new entry, pointing
out the change. |
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l) |
Pencil
diagrams or sketches should never be retraced in ink. |
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m) |
Photographs
are useful in keeping a complete laboratory notebook. Particularly
where a model has been made and successfully tested, it is
desirable to take one or more photographs which will serve
as a future identification. The photographs can be permanently
pasted into the laboratory notebook, with date and identification,
and the name of the photographer. |
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n) |
Laboratory
books should never be mutilated, as by tearing or cutting out
pages. |
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o) |
When
a project is divided between two or more investigators or groups,
at least one group should make occasional entries showing the
relation of the groups to the project as a whole, and indicating
how a compound or equipment being developed by the different
groups is to be combined in a common system. |
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p) |
In
interference proceedings, the Patent Office has ruled that
an inventor is not competent to prove the making and reduction
to practice of an invention by his own testimony. His testimony
is competent, but it must be corroborated by another witness.
The other witness must not be a joint inventor. Because of
this possible future difficulty in proving the records, another
investigator should look over the entries in the book as frequently
as possible, and place his initials at the end of each entry,
with the date. Obviously, this date should be as near as possible
to the date of the entry. |
| 7. |
In
general, all of the above must be kept within reason. It should
be possible to keep records in reasonably complete and clear
form without becoming too time-consuming and burdensome. |
Notebook Entries:
| 1. |
Make in permanent medium |
| 2. |
Use consecutive pages |
| 3. |
Date entries |
| 4. |
Identify subject matter |
| 5. |
Include sketches, diagrams, etc. |
| 6. |
Explain sketches, etc. |
| 7. |
Photos, drawing, etc., should be identified and permanently attached |
| 8. |
Avoid erasures |
| 9. |
Don't change entries; make new entry |
| 10. |
Periodically have someone look over entries and witness same by applying
signature and date |
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