Intellectual Property: Defining Patents

The term patent stems from the Latin word patere, which means to lay open. The patent holder lays open or describes something for all to see in a patent, but with US patent law the patent holder is granted 20 years of preotection and supposedly exclusive rights to the productino of the item in the patent. Patents are so difficult to enforce, so they basically become marketing techniques. There are three different types of patents:

1. Utility patents (eg. method, process, or machine)
2. Design (eg. look & feel)
3. Plant (eg. flowers)

Yes, you can patent flowers. Crazy, right? Along with the three patent types, US patent law lays out several requirements to being granted a patent in the US:

1. Must be useful.
2. Must be credible.
3. Must be practicable.
4. Must be non-obvious to someone in the industry.
5. Applicant must be inventor.
6. Applicant must be the first to invent in the US.
7. Can't be known or used by others in the US.
8. Can't be published more than 1 year ago.
9. Can't be in public use or on sale in the US more than 1 year.
10. Can't be abandoned.
11. Can’t have a foreign patent older than 1 year.

There’s also something called a provisional patent, somewhat like a patent draft. It holds your place in line to actually obtain the patent, but discloses your secret so someone else can file for a patent very similar.

Point seven in the requirements list usually has the term “prior art” associated with it. This simply refers to evidence that the patent-pending item was used or known before a patent was granted. That way if a small company invents something new and start selling it, a larger company can’t rush in a patent application and bully out the smaller company. The small company still has prior art, namely their item on the market. However, they must apply for the patent within one year, and even then enforcing the patent and trying to prevent other companies from producing the same item is difficult. It can cost a lot of money in legal fees, and another company can simply tweak one little thing and claim they are producing something entirely different, not infringing on the patent. If the original company tried to prove otherwise, it would take a lot of time and money.

Along with patents comes the idea of patent trolls, or non-practicing entities. A patent troll is basically an empty or dead company who owns nothing but patents. They don’t have an active product on the market using those patents, and they might not even have been the original owners of the patents since patents are transferable. Patent trolls try to seek money from other companies they feel are selling products or using in some way items falling under their patents in some way. They threaten with legal battles over these patent violations, and sometimes companies end up paying some lump some to these trolls because they just want them to go away instead of being drawn into lengthy and costly legal battles. Remember the Three Billy Goats Gruff? A patent troll is the big ugly troll underneath the bridge doing nothing at all but threatening any who come near it thinks it can exploit.

Another problem in the patent system is point four of the patent requirements: “must be non-obvious to someone in the industry.” You would think that the patent office would employ a bunch of industry experts to decide whether a patent application from a certain industry is valid. Nope. The people approving patents are rarely if ever knowledgeable about the industry to which the patent applies, and so industry-obvious things get patented all the time. Eventually in a lengthy court case a patent can be invalidated after an entity proves the obvious nature of a patent to someone in the industry, but again, that costs time and money.

With so many problems in the patent system, the tech world, and more specifically the mobile world, has seen rise of patent wars. Companies threaten other companies, waving their patent portfolios over their heads and threatening legal action. The other company responds with their patent portfolios and assertions that the attacking company is violating their patents too, and if they act against them they’ll attack back. It’s a lot like a war in which companies brandish their weapons like their stockpile of nukes and the other country shows their piles of nukes, saying “Really? Are you sure you want to start something?” Unfortunately, companies in the mobile world haven’t been backing down lately and ending uneventfully like the Cold War, so the mobile tech world is tied up like a giant spider web of legal disputes and patent battles. 

In the end, our patent courts are tied up, companies are paying millions in legal fees, and consumers pay the hidden cost in product prices. Innovation is slowed down in these companies as resources are devoted to protecting their precious patents and treading carefully with new products to not further entangle themselves in patent disputes. The whole point of the patent system was to encourage innovation and creation by protecting the inventor for sometime so he or she could get their product out there instead of being bullied out by large companies. Instead, patent law has become complex and burdensome, stifling the very creativity it was supposed to protect.