On 01, Jun 2013 | In | By Andrew
What is a patent?
In the last decade, patents have gotten a lot of attention. We think of them as denoting products that are “high tech.” We think of a lone inventor toiling away at a workbench, trying in Herculean fashion to solve some intractable problem. Lately, we’ve been taught to think of massive patent lawsuits, of tech titan versus tech titan, battling for millions of dollars. Yet we do not often take the time to think about what a patent actually is, and what it is not.
Simply put, a patent is a right granted to an inventor by the government — in essence, a bargain between the inventor and the government. In exchange for disclosing his or her invention in such complete terms that someone in the field could build and improve on it, the government gives the inventor the right to stop others from making, using, or selling the invention for a limited period of time. Understand that the “right to stop others” from making, using, or selling the invention does not necessarily mean that the patentee has the right to make, use, or sell the invention — it is possible that making, using, or selling an invention may require a license from another patentee whose invention was similar or a precursor.
In the United States, patent law is federal and constitutional in origin — Article I, Section 8, Clause 8 of the Constitution gives Congress the 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.” Today, the granting of patents is controlled by the U.S. Patent and Trademark Office, and the enforcement of patents is a matter for the federal court system.
As a practical matter, patents are granted for high-tech, low-tech, and everything in between, although there are some limitations. (For example, you can’t patent natural laws or abstract ideas.) Over the years, I’ve patented yarn dolls, trapezoidal bookshelves, luggage, machine tools, cocktail glasses, chemical compositions, computer speech processing systems, and everything in between.
According to the Constitution and the law, a patent may only be granted to or with the consent of the actual inventor(s). A patent has the attributes of property, and may be mortgaged, licensed, or sold, to give a few examples. By law and tradition, a patent automatically belongs to the inventor(s) unless he or she has made arrangements to transfer the rights to another person or a company. (Many companies include provisions about patent ownership in their basic employment contracts.)
Because of a recent change in the patent law, the U.S. currently grants patents to the first inventor to file a patent application for an invention, and not the first inventor to actually invent that invention. Public disclosure of the invention prior to filing a patent application can prevent an inventor from getting a patent. Thus, it’s important to discuss any new inventions with a patent attorney or agent as soon as possible.