Do you know the #1 thing that Americans look at online? If you guessed the ‘p’ word, you’re right: patents.
While these large companies also spend a lot of their money and energy on actually developing the technologies that are protected by their patents, there are many lesser-known companies out there (informally called “patent trolls”) whose only business model is to use their patents to sue as many people as possible. They don’t even bother developing any products to make a profit — they survive solely on sending threatening letters to anyone they think is infringing on their patent and hoping that person/entity will pay a “small” fee for settling that dispute instead of hiring an expensive attorney to defend themselves in court later.
They see me trollin.’ They hatin.’
For a while now, everybody who’s anybody in Congress has been telling us that all these patent lawsuits are ruining our great country because they distract inventors (and the companies they work for) from creating new and useful things, and also prevent our court system from dealing with other, you know, real, issues.
Is this true? To even begin to answer that question, we need to first understand what a patent is and what it does. Don’t worry — this won’t be boring. For me.
What is a patent?
Essentially it’s a piece of paper issued by the government, specifically the United States Patent and Trademark Office (“USPTO” or “Patent Office”), which allows the patent holder (“patentee”) to sue others.
You might think a patent gives you the exclusive monopoly over your invention. This is not completely true. A patent gives you a negative right — that is, the right to stop other people from making, using, selling, offering to sell, or importing your invention into this country. Most patents last for 20 years, which is a long time for you to go around suing people that you honestly think are doing any of those activities.
To get a patent, you need to file a patent application that describes your invention in a certain way. The language you use in this application isincredibly important. You want to describe your invention in a broad way so that if anyone infringes on it, you have a legitimate reason to sue them. But you also want to describe your invention in a narrow way so that if somebody sues you for infringing on their patent, you can rightfully defend yourself by pointing out in your patent where your language is different from theirs.
For example, the USPTO granted a patent to Apple in 2004 for inventing a new kind of software process. In their patent application, Apple described their invention as something that could do “searches across multiple databases” in order to give accurate response to users’ questions. (Think Siri, although this patent was granted way before Siri was developed.) The language in Apple’s application is broad, and the company is still using it to sue anyone they think is infringing.
Siri’s inventor? Your mom.
How do you get a patent?
This is a more complicated question. To get a patent on an invention, you must prove basically 4 things: patentable subject matter, novelty, non-obviousness, enablement. Stay with me, now…
Subject matter: You must prove in your application that your invention is in one of the recognized subject matter categories. These categories are usually very broad and cover a whole range of technologies from a touchscreen to a method for exercising a cat.
So you can’t get a patent on something that is a law of nature, or a naturally occurring phenomenon, or a historical fact, or even a math algorithm that your beautiful mind came up with. You could, instead, get a patent on a device that uses that law of nature to do something, or a piece of software that uses that algorithm to do stuff.
Actual diagram from someone’s patent titled “A Method for Exercising a Cat [using a laser beam].” Collective facepalm, everyone!
Novelty: Is it original? (Yeeeaaah, yeeeaah) You must prove in your application that you were actually the first person to come up with your idea. This means showing the Patent Office that there’s nothing existing in the world that is EXACTLY like your invention.
For example, if your invention is made up of elements x, y and z, you would have to prove that there isn’t another invention out there already that also has elements x, y, and z in the same (or similar) arrangement as you. If something like your invention does exist already, it’s called “prior art.” Most inventors simply file a form with their patent application that discloses all the prior art that they’re aware of, but the Patent Office usually conducts their own prior art research when they review each application.
“Yes, sir, I am ‘lovin’ it,’ but your hamburger USB invention already exists.”
Obviousness: Is it a rip-off? You have to show in your application that there isn’t any prior art out there that is an obvious variation of your invention. That is, the prior art and your invention cannot be so similar that a person who is as skilled and as much of an expert in the field of technology of your invention as you (the inventor) could have come up with your invention by using the prior art.
Suppose you invent a new type of bra, that has elements a, b, and c arranged in a particular way (let’s call this ‘Arrangement 1’). To get a patent on it, you’d have to show that a person having ordinary skill In the art (“PHOSITA”) of bra design/technology would not have come up with designing elements a, b, and c into Arrangement 1 just by studying existing bra design technology. It’s tricky stuff, and that’s why patent attorneys/agents get paid to write these applications.
Dude Having Ordinary Skill in the Art (of taking it easy)
Enablement: You patent application has to describe your invention in such a way that a PHOSITA would be able to read it and generally understand how to go about making and using your invention. This enablement requirement is what separates plausible inventions from impossible ones.
So you can’t just get a patent for a time travel machine based on the schematics from “Back to the Future,” because there isn’t anybody in the realworld who could actually design such a thing. The technology just doesn’t exist and nobody can enable it.
This enablement requirement is also why the Patent Office doesn’t allow anyone to get a patent on making a nuclear weapon — we wouldn’t want to teach any crazies how to make them!
“Enablement? Where we’re going, we don’t need enablement!”
There’s a LOT more to patents than what you’ve read here, obviously. If you have an idea for the next big thing, you might want to think about getting a patent on it. Until then, at least you now have a much better idea of what they’re all about.
It’s true that there are many patent lawsuits going on in this country. But that’s because patents generally give a patentee the negative right (for 20 years) to sue others when they try to make, use, sell, offer to sell, or import the protected invention. Big tech companies and patent trolls alike are heavily invested in using patents to enforce these negative rights. You get a patent by filing a patent application with the US Patent & Trademark Office (USPTO), in which you must describe your invention both broadly and narrowly. Your application has to meet the 4 basic requirements of patentable subject matter (invention is in a recognized field of technology), novelty(being actually new), non-obviousness (not being self-evident), andenablement (being plausible).
(Disclaimer: These writings are created strictly for educational purposes only and should not be construed as legal advice in any way. Communications made with the author through this website do not create an attorney-client relationship.)