In my specification, there is a lot of language such as, "There remains a need for..." and "...would be greatly desired". This is, of course, pertaining to my invention. But in practice there doesn't really, "remain a need for" the the item because the item is already on the market fulfilling the niche it was meant for. Do I change the wording of the specification, using phrases such as, "the need has been met by...." and things of that nature?
This is a style question, and different people use different styles. Either way, the language is limiting the scope of the invention to the "new" bits, so either language should be acceptable to the examiner.
That said, I assume you are talking about the "baclground" section, or maybe the brief summary. This language does not belong in the detailed description at all.
Do I state somewhere in the spec that it is produced and being sold?
You could, I suppose,, but there is no reason to do so.
You do need to inform the USPTO, but the most likely vehicle for informing the USPTO would be an IDS.
Also, there is a ton of prior art in the field, but none in this class that is on the market. I do not know for sure, but I suspect that the prior art items haven't made it to market yet because there is a problem with them that mine solves. When knocking the prior art for these reasons, do I add that none have made it to the market possibly for these reasons?
Again, are you talking about the background section? You don't "knock" prior art in the background. If you include any detailed description of the relevant art at all, you simply explain the limitations of the art to show the niche that your invention fills.
That said, a detailed background in the specification is not the way to go, usually. Instead of comprehensively explaining why the prior art doesn't do what your invention does, briefly describe the art and its limitation and leav it at that. Save the detailed discussions for the prosecution -- you will need them when you get an office action anyway.
Further, remember that anything you say in a patent (or in the prosecution, for that matter) can and will be used against you if you ever try and enforce your patent against an infringer, or ever need to defend your patent against a validity challenge. If something is not
necessary to the description of the patent, or to enable the patent, then it probably should be left out.
Statements made in the background sometimes provide arguments for litigators to really limit the scope of a patent during an infringement action. The background section (actually, ANY section of a patent) isn't a throwaway section where you can say whatever you want, and it is not a place to "market" your invention. Sure, something in the brief summary or the background is unlikely to get a patent rejected by the patent office, but remarks made in these sections can be used later on if the patent is ever enforced in court.
Just something to think about. Getting a patent is one thing; getting a patent that is broadly enforceable is another thing altogether, and it is the second part -- the enforceability part -- that makes drafting patents hard.
