Howstuffworks "How Patents Work" Computer StuffAuto StuffElectronics StuffScience StuffHome StuffStuffoHealth StuffMoney StuffTravel StuffPeople StuffMain > People > GovernmentClick here to go back to the normal view! How Patents Work by Tom Harris When inventors come up with a new device, the first thing they want to do is patent it. Patents are a government's way of giving an inventor ownership of his or her creation. For a certain period of time, patent-holders are allowed to control how their inventions are used, allowing them to reap the financial rewards of their work. Patents are a palpable, legally-binding manifestation of a person's genius and innovation; they allow a person to actually own an idea. http://people.howstuffworks.com/patent.htm/pr intable (1 of 15)2/4/2003 1:55:29 AM Search HowStuffWorks and the Web
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How Patents Workby Tom Harris
When inventors come up with a new device, the first thing they want to do is patent it. Patents are agovernment's way of giving an inventor ownership of his or her creation. For a certain period of time,patent-holders are allowed to control how their inventions are used, allowing them to reap thefinancial rewards of their work. Patents are a palpable, legally-binding manifestation of a person'sgenius and innovation; they allow a person to actually own an idea.
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Image courtesy United States Patent and Trademark OfficeAn illustration from Thomas Edison's 1879 patent on an electriclight, his first such device. Edison expanded on the ideas in this
patent throughout his career, claiming hundreds of patentsrelated to electric lighting.
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In this article, we'll look at patents to find out what they are, how they work and how an inventor goesabout getting one. As we'll see, patents are crucial to the progress of technology, and they play amajor role in the business world.
Hot PropertyIn most modern nations, there is an established system for protecting intellectual property , the
product of a person or company's originality and creativity. The broadest protection of this sort is thecopyright . Copyrights are intended to protect "original works of authorship" that are in a tangibleform. This includes paintings, books, movies, choreographed dances (if the steps are written down),music, architecture and all other sorts of art. For a set length of time, these works cannot be copiedor reproduced without the copyright-holder's permission. In the United States, the protection extendsfor the life of the copyright-holder plus 70 years. If a company owns the copyright, the protection lasts95 years.
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Copyrights do not protect the ideas put forth by a particular piece of art; they only protect the way inwhich those ideas are presented. In this article, for example, the information about copyrights andpatents is not owned by anybody, but the sentences and paragraphs used to explain this informationare copyrighted by this Web site. In the United States and many other countries, any original work ofauthorship is automatically copyrighted as soon as it is created. To learn more about copyrights, seeWhat are copyrights and patents? .
Other sorts of intellectual-property protection are much narrower in scope. Trademarks protectdesigns and phrases that businesses use to distinguish their product from other companies' products,and trade secrets protect proprietary information that must be kept secret in order for a business toprofit (the recipe for Coca-cola, for example).
Of all of the forms of intellectual-property protection, patents are the most complex and tightlyregulated. Patents are basically copyrights for inventions , defined by U.S. patent law as "any newand useful process, machine, manufacture, or composition of matter, or any new and useful
improvement thereof." Unlike copyrights, patents protect the idea or design of the invention, ratherthan the tangible form of the invention itself. Consequently, patenting something is a much trickierprocedure than copyrighting something. In the next section, we'll see what standards you have tomeet to get something patented.
Invention ConventionsIn the last section, we looked at various types of intellectual-property protection, including copyrightsand trademarks. Patents are the most complicated type of intellectual property, as well as the mostrestrictive. To patent an invention, you have to meet a number of requirements. First of all, the
invention must be sufficiently novel . That is, it must be substantially unlike anything that is alreadypatented, has already been on the market or has been written about in a publication. In fact, you can'teven patent your own invention if it has been on the market or discussed in publications for morethan a year.
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Image courtesy United States Patent and Trademark Office An illustration from U.S. patent # 5,375,430, a 'gravity-poweredshoe air-conditioner.' Like many inventions, this device doesnot introduce any new concepts, but instead combines twoexisting concepts in an original way. The shoes, patented in
1994 by Israel Siegel, are powered by the walking motion of theuser. Each time you take a step, your heel works to activate the
air-conditioner compressor and expander.
The vast majority of inventions are actually improvements on existing technology, not wholly newitems. The camcorder , for example, is essentially a combination of a video camera and a tape recorder , but it is a unique idea to combine them into one unit. It was so innovative, in fact, that whenJerome Lemelson first submitted the idea to the patent office in 1977, it was rejected as an absurdnotion. When the invention was eventually patented, it launched a flood of portable video machines. Ifyou search for the term "camcorder" in the U.S. Patent Office's database, you will find more than athousand separate patents. A modern camcorder is a combination of hundreds of patented
inventions.
Adaptations of earlier inventions can be patented as long as they are nonobvious , meaning that ahttp://people.howstuffworks.com/patent.htm/printable (5 of 15)2/4/2003 1:55:29 AM
person of standard skill in the area of study wouldn't automatically come up with the same idea uponexamining the existing invention. For example, you can't patent the concept of making a toaster thatcan handle more pieces of bread at once, because that is only taking an existing invention andmaking it bigger. For an invention to be patented, it must be innovative to the point that it wouldn't beobvious to others.
Another condition for patenting something is that the invention is " useful ." Generally speaking, thismeans that the invention serves some purpose and that it actually works. You couldn't patent arandom configuration of gears , for example, if it didn't do anything in particular. You also wouldn't beable to patent a time machine if you couldn't construct a working model. Unproven ideas generally fallinto the realm of science fiction, and so are protected only by copyright law. The "useful" clause mayalso be interpreted as a prohibition against inventions that can only be used for illegal and/or immoralpractices.
All a patent really does is give the patent-holder the right to stop others from producing, selling orusing his or her invention. For the life of the patent (20 years in the United States), patent-holders canprofit from their inventions by going into business for themselves or licensing the use of their
invention to other companies. It is up to the patent-holder to actually enforce the patent; thegovernment does not go after patent or copyright infringers. To enlist the government's help instopping infringement, the patent-holder must take any infringers to court.
Some inventors, such as the late Jerome Lemelson, have spent a significant part of their careersbattling infringers. Many large companies have been accused of appropriating inventors' ideaswithout compensating them for their work. Though Lemelson had patented crucial components insome of the most momentous technology of the 20th century, he spent much of his life struggling toget by. His critics charged that most of his ideas were based on projects companies were alreadypursuing. Eventually, Lemelson won out, amassing a substantial fortune late in life. He and his wife
Dorothy used much of this money to assist other struggling inventors. In 1994, they established theLemelson Foundation , a philanthropic organization dedicated to promoting and rewarding Americaninventors.
While patent law does protect most forms of invention, it does not apply to all great ideas. In the nextsection, we'll see what sort of things can be patented and which cannot.
Can You Patent That?In patent law, the term "invention" is defined loosely so that it can encompass a wide variety of
objects. Obviously, if patents have to apply to things that don't exist yet, then the legal language mustbe fairly vague. In addition to standard technological machines and machine advancements, you canalso patent certain computer programs, industrial processes and unique designs (such as tire or shoe-
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tread patterns). While none of the elements in these creations are new, the inventor may havecombined them in a unique and innovative way. In the language of patent law, this constitutes aninvention.
Some sorts of ideas are considered outside the realm of patents. No matter how innovative andbeneficial they may be, certain notions are automatically public property the minute they areuncovered. The most prevalent examples of this are discoveries in the natural world. Scientistscannot patent laws of the universe, even though defining those laws may revolutionize a particularindustry or change how we live. Einstein's Law of Relativity, for example, revolutionized the world ofphysics and will be forever linked with the man who devised it, but it has never been owned byanybody. This principle existed long before humans did, so, logically, it cannot be any person'sintellectual property.
Scientists cannot patent a newly discovered plant or animal, either, though they may be able topatent a new plant or animal that was produced through genetic engineering. This is similar to thepatenting of processes and computer programs: A genetic engineer didn't create any of the parts, butthe combination of these parts may be novel and nonobvious, and therefore patentable
In addition to giving proper credit to individual inventors, patents help out humanity in general. In thenext section, we'll see why patents are so important to a society.
Who Has the Most Toys?With 1,093 patents to his name, Thomas Edison (1847-1931)remains the most prolific inventor in U.S. history. He received hisfirst patent, for an electrical voting machine, at the age of 21. In1876, he set up an invention lab in Menlo Park, New Jersey, andset a schedule of one small invention every 10 days and one major
invention every six months. Among many other inventions, Edisonis the father of the light bulb, the phonograph and motion pictures with sound .
Trailing behind Edison are Jerome Lemelson and Edwin Land.Jerome Lemelson (1923-1997) held 557 patents, and played amajor part in the development of camcorders , CD players , word-processing programs, Walkmans, fax machines and automatedindustrial machines, among many other devices. Edwin Land (1909-1991) held 535 patents in his life, and is best known for hisinstant-photography techniques, which are used in Polaroidcameras.
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What's the Big Idea?In the last couple of sections, we saw that patents grant inventors ownership of their original ideas,giving them temporary control over who can use those ideas. This system shows up in some form oranother in most all developed nations, because it is so important to a country's development. Patentsaffect society in a number of a ways, but at their core, they serve a very basic function: They helpencourage the advancement of science and technology.
Patents do this in two major ways:
q They give inventors an opportunity to profit from their creations. The process of inventing anew device or process is an extremely difficult one, and few people would go through it if thereweren't any financial reward.
q They help disseminate technological information to other inventors. When you apply for apatent, you are required to submit a detailed description of your invention. This descriptionbecomes part of the patent office's database, which is public record. Once the patent hasexpired, the idea is more readily available than it would have been if it had never beenpatented.
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Image courtesy United States Patent and Trademark Office Illustration for U.S. patent # 3,150,641, a dust cover for a dog.In addition to keeping dust off the dog, the 1964 invention isdesigned to keep flea-treatment products on the dog's skin
while the chemicals are working. The patent explains that thedust cover could also be used to dry the dog after a bath. You
blast a hair dryer into the provided port, and the hot aircirculates all around the dog's body.
Patents motivate individual inventors, but they also motivate large companies. They are particularlyimportant to chemical, computer-technology and pharmaceutical firms. In these markets, your
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success might be wholly dependent on having exclusive rights to innovative products. Intellectualproperty makes up a huge chunk of these companies' assets. Currently, IBM leads the pack in theinvention race, boasting more than 2,000 patents in 1999 and again in 2000.
When something is invented as part of a person's work for a company, the company is typically givencontrol over the invention, though the patent may officially go to the individual inventor. Thisarrangement varies depending on the country and the nature of the employee's contract. If you arecontracted to grant your employer all patent rights to your work, selling your own invention would
actually be infringing your own patent (and your employer could take you to court). The same holdsfor copyrighted "work-for-hire." You may be the original creator, but if you republish the work yourself,you are infringing the copyright.
In the next section, we'll find out how an inventor actually goes about patenting an idea. As we'll see,this is usually a long, expensive and difficult process.
Picking Up a PatentPatents and copyrights are closely connected forms of intellectual-property protection, but the
respective processes of acquiring them could hardly be more different. As we've seen, any originalwork of art is automatically copyrighted as soon as it is put into some tangible form. To strengthenthat protection, the creator may write a simple copyright notice, which includes the word "copyright"or the copyright symbol, the copyright-holder's name and the year of creation. To get a patent,however, you need to fill out a stack of forms, do extensive research and, in most cases, hire alawyer.
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Image courtesy United States Patent and Trademark Office A motorized ice-cream cone, patented in 1998 by Richard
Hartman. The patent (# 5,971,829) describes the device as 'Anovelty amusement eating receptacle for supporting, rotating
and sculpting a portion of ice cream or similarly malleable foodwhile it is being consumed.' Even this relatively simple noveltyitem has a fairly extensive patent. It includes seven claims and
six drawings, and it cites 15 earlier patents.
Let's say you're a brilliant inventor, and you come up with an ingenious teleporter , a device that canmove people across the room by scanning them, replicating them exactly at another point anddestroying the original. To make things simple, let's assume that you only want to patent your idea inthe United States. Once your prototype is finished, and you've successfully beamed your cat and afew incredulous family members across the room, the first thing you need to do is search the United States Patent and Trademark Office's patent database to see what similar ideas have been patented.You can do this at the Patent Search Room in Arlington, Virginia, or online at the U.S. Patent Office site .
When you search the database, you come up with two related machines: a machine that can teleport
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single quantum particles and a highly-sensitive medical scanner that analyzes the 10 28 atoms thatmake up the human body and stores the information in a large database. Your machine uses asimilar scanner to catalog the tiny particles that make up a person, and replicates these particles inthe same sort of way as the quantum teleporter. But you have added the crucial element that makeshuman teleportation possible: a sophisticated computer system that can arrange the replicatedquantum particles in exactly the same configuration as the original.
At this point, you know that your invention is new, but you don't know what the scope of your patent
should be. You haven't invented teleportation, per se, but you have made it practicable on a grandscale. Confused as to how you should proceed, you decide to enlist an expert's help. There are twomain types of patent professionals: patent lawyers and patent agents . Patent lawyers are attorneyswith a science or technical degree who have met the patent office's qualifications (their professionalcredentials have been reviewed and they have passed a qualifying test). Patent agents are peoplewho have met the patent office's qualifications but are not recognized as attorneys. Some inventorswork through the patent process themselves (called working pro se ), but most hire a patent lawyer orpatent agent early on in the process.
A patent lawyer performs a number of different tasks for the inventor. In the next section, we'll seehow your lawyer (let's call her Suzy) would help you patent your teleporter.
Suzy and the TeleporterOnce you have your brilliant idea, and you've found a good lawyer, things get a little morecomplicated and a lot more expensive. The first thing Suzy wants to do is review your teleportationidea in minute detail. To proceed efficiently through the patent process, she needs to understand themachine inside and out (this is why patent lawyers need a good technical background in addition to alaw degree).
Once she is familiar with your invention, Suzy begins a thorough patent search of her own to uncoverall of the related ideas that have already been patented. At this point, Suzy may uncover a patent (orpatent application) that you had not found, and she may tell you that your machine cannot bepatented because it is too similar to the earlier invention. Or she may suggest that you focus in onone particular aspect of the invention -- perhaps the device that assembles the atoms in the correctorder. This initial search and consultation can cost thousands of dollars, but may be worth the moneyif it saves you from trying to patent an unpatentable idea (which would probably end up costing a lotmore).
The ApplicationIf Suzy believes you should proceed, she starts putting the patent application together. Theapplication is made up of a number of different parts. It must include:
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q A list and description of any "prior art," earlier inventions that are relevant to your invention.This would include the quantum teleporter, the body scanner and anything else that Suzycame up with.
q A brief summary outlining the new inventionq A description of the "preferred embodiment" of the invention. This is a detailed account of how
your idea will actually be put into practice. Suzy would have an artist create precise drawingsof the machine, explaining point by point how the machine can transport somebody across the
room.q One or more "claims." Claims are the most important element of the application, as they are
the actual legal description of your invention. Down the road, if you need to take someone tocourt for infringing on your idea, the strength of your suit will largely depend on your claims.The patent lawyer has the necessary training to ensure that your claims provide the highestlegal protection.
If you hire a patent lawyer, the application will probably be the biggest expense in the patentingprocess. Depending on the nature of your invention, a lawyer might charge anywhere from $5,000 to$20,000 for his or her services. The application is also the most important step in the process, since itwill form the basis of your patent.
Once the draft of your application is complete, Suzy shows it to you and you work together to correctany errors. Next, you send the application on to the U.S. Patent Office, along with several hundreddollars in submission fees. After submitting the application, the only thing left to do is wait for it towork its way through a government patent examiner's stack of work. In this period, you may beginmarketing the teleporter, and you may legally label it "patent pending." When the examiner finallyreviews the application, he or she may "allow" (approve) the application as it is submitted or reject theapplication on the grounds that it is too close to an earlier invention or that the wording is problematic.
Who Received the MostU.S. Patents in 2000?
1. International BusinessMachine Corporation(IBM) - 2,886
2. NEC Corporation - 2,0203. Canon Kabushiki Kaisha
- 1,8904. Samsung Electronics
Co., Ltd. - 1,4415. Lucent Technologies Inc.
Most patents are rejected on first application, and this is notnecessarily the end of the road. The examiner will detail exactly whythe application was rejected, and you and your lawyer may be ableto address these issues by narrowing the focus of the patent. If youchoose to go this route, your attorney writes up an amendment andsubmits the application for a second review. At this point, theexaminer might approve the amended application, reject theapplication or negotiate with your lawyer until both sides are happy.Alternatively, you might decide to give up when you are first
rejected, or you might file a brief charging that the examiner waswrong to reject the application.
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- 1,4116. Sony Corporation - 1,3857. Micron Technology, Inc. -
1,3048. Toshiba Corporation -
1,2329. Motorola Inc. - 1,196
10. Fujitsu Limited - 1,147
The NoticeOnce the examiner is satisfied with your application, you are issueda "Notice of Allowance." All you have to do at this point is pay thepatent fee (which runs upwards of $645). During the life of thepatent, you have to pay periodic maintenance fees , which come outto thousands of dollars. But if your idea is good enough, thereasoning goes, you will make much more money by licensing yourpatented idea.
The entire patenting process can take anywhere from a year to five years. The life of the patentactually begins at the application date, not the approval date, so few inventors wait around for finalpatent approval before selling their invention. An inventor's claim to an idea is also based on theapplication date. Whoever submits an original idea first is granted the patent. In some cases, two ormore inventors submit the same invention around the same time. When this happens, the patentoffice must declare an "interference," a trial-like proceeding that determines who was the firstinventor. Like a trial case, an interference can be extremely expensive for both parties.
If your invention is of worldwide interest, you might consider applying for patents in other countries.Patenting an idea in the United States only protects you in the United States. Anybody can profit offyour idea in another country if it is not patented there. If you plan to patent the invention in othercountries, you'll need a patent lawyer with international patenting experience.
Patenting an invention is no easy task, but it is a necessary element in the life of an inventor. Whilethe actual application process and the burden of enforcing a patent can be brutal and unforgiving,owning your ingenious idea is an exhilarating experience. To many inventors, this legal recognition iswhat makes it all worthwhile.
For more information on patents and related topics, check out the links on the next page.
Lots More Information
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q The United States Patent and Trademark Office q European Patent Office q U.K. Patent Office q Search the U.S. Patent Database q PatentCafe q The National Inventors Hall of Fame q Delphion Intellectual Property Network q Patents.com q Text of the U.S. Patent Act q Do Patents Still Work? q Pressure on the American Patent System q Wacky Patent of the Month
