What is a Patent?

Bill NaifehIntellectual Property - General, Patents

A patent is a government grant or intellectual property right that allows its owner to exclude others from making, using, selling, or importing the claimed invention.

Patents are probably the strongest of all intellectual property protection because:

A patent protects the underlying concept of an invention.   In a computer program, for instance, this usually involves the way the program functions or operates.  A patent can provide protection against all competing programs performing the same functions even if the competing programs have a “look and feel” that is nothing like the patented program.

As opposed to copyrights, a patent can also protect against the independent development or reverse engineering of an invention.

Because patent protection is so strong, the patent review process is long, tedious, and expensive.

Patents are essentially a quid pro quo with the government.  The inventor discloses the invention (which increases the general public knowledge) in exchange for a multi-year monopoly for the invention.  However, in order for this trade to be fair, there must be a true increase in the public knowledge.  There are many requirements designed to determine if the exchange has resulted in a true increase in public knowledge (the requirements are described in other posts).

Generally, when most people think of patents, they think of utility patents.  Utility patents protect the function or structure of an invention – as opposed to the appearance or “look” of the invention (which are the subject of design patents, copyright and trademarks).

A patent is NOT a right to actually use the invention.  It is only a right to EXCLUDE others from using, making or selling the invention.  This concept is often confusing to many businessmen and inventors.

Let me explain by example:

Suppose Jack owns a patent on an invention.  The claimed invention consists of “a platform having a top side and a bottom side, wherein the top side is adapted to support a posterior portion of a human, and one or more generally vertical supports coupled to the bottom side of the platform, for carrying load to a floor.”  In other words, Jack has a patent on a stool.  Now suppose Janet notices that people using stools have poor posture.  So, she invents and files for a patent for a chair (i.e. a stool with a back support).

When the patent office receives Janet’s patent application, it will check its database for anything resembling a chair.  If Janet’s application meets the patent office’s requirements, the patent office will issue a patent to Janet.

But what about Jack’s patent?  Can Janet make her chair without violating Jack’s patent?  No, because her chair infringes upon Jack’s patent.  So, why did the patent office issue a patent to Janet?  Because the patent office is only concerned about “patentability requirements.”  The patent office will not check to see if Janet’s patent infringes upon any other patent.  (Checking to see if an invention violates the patents of others is called a “Freedom to Operate” or “FTO” analysis.)

So, what good is Janet’s patent if she cannot use its invention without violating Jack’s patent?  First, it may have value to Jack or to one of Jack’s competitors.  It is clearly an improvement on Jack’s product and he might increase his sales if he could offer the improvement.  As long as Janet has her patent, Jack cannot offer the improvement.  So, Jack might be willing to buy Janet’s patent.  Alternatively, Jack could enter into a cross-license agreement with Janet which would allow both Jack and Janet to make and use chairs, while excluding all other competitors.  After all, one half of a larger pie might be better than an entire smaller pie.