Patent Basics

A long time ago (seriously, it’s able to be rounded up to a decade now), I trained to be a patent lawyer. I’m even licensed and everything. I’ve never practiced as a patent attorney, nor will I pretend to blog seriously about patents (why would you even try when Dennis Crouch does such an amazing job over at Patently-O). However, I feel like I have some amount of insight that I might be able to impart about the patent system, despite the drastic changes the system has undergone in recent years. Hell, my great grandfather was a patent holder. That’s gotta count for something, right?

I love that my great-grandfather invented a coffee machine.
I love that my great-grandfather invented a coffee machine.

Monopoly in Exchange for Disclosure

The idea behind patents is pretty simple. It’s good for society for technology to advance in an open and public way. But, the theory goes, there is no incentive to invent unless you are able to make money off of your invention. And it’s hard to make money off of your invention if everyone else can just steal your idea. So the government makes a trade: you publicly disclose how to make your invention and we’ll give you a legal monopoly on that invention for some set amount of time. It’s right there in the Constitution:

The Congress shall have Power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

That is the Copyright and Patent Clause in the enumerated powers of the US Congress. This clause is enacted by various patent laws, which are mostly found in Chapter 35 of the United States Code.

The Basics of a Patent

Currently, patents are for 20 years and are given to the first inventor to file a patent application. That “first to file” part is a recent development. Until 2011, patents were awarded to the first person to invent, even if they filed after another person claiming the invention as their own. This lead to a lot of lawsuits where people fought over who invented the thing first. That’s no longer an issue now; all you have to do is look at the filing date.

To be granted a patent, your invention is supposed to be novel (new), non-obvious, and useful. There is a pants-load of case law developing these ideas further, but that’s the short version. If you meet those three criteria, you get a patent. Though, I should point out, that you may still get a patent even if you don’t meet those three criteria. (Hint: that was foreshadowing for a future post about problems with our current patent examination system)

In the application for the patent, you have to define what your invention covers. The description of the patent is one sentence that attempts to describe the invention in as broad of terms as possible; that way, the inventor is able to cover as many possible variations of the invention as he can.

This description of the patent is where the vast majority of patent disputes are found: does the defendant’s product fit within the boundaries of what the inventor described in his patent? A really good example of this can be found in a This American Life episode about patent trolls (a subject I want to discuss later). If you don’t want to listen to that story, the basics are that someone patented what was basically an internet service that would deliver tapes with audio magazine stories on them when you order them. That same person is now suing several podcast distributors, claiming that their podcast delivery system fits within the definition in his patent. So, the question is, do podcasts fit within the scope of his audio tape delivery patent? It’s probably a tougher question than it seems on the surface.

I’ll have some other posts in the future, but I just wanted to lay some groundwork here for those future posts.