6 things to know about patents, the short form.

Basic Patent Knowledge #0: The patent system has a long history. It’s fundamental task is to incentivize sharing of knowledge. Not protection of the innovator as many people assume. It is a deal with society. In exchange for full disclosure of your invention, you get a limited monopoly (20 years typically) to exploit your invention commercially. After the 20 years your knowledge enters the public domain.

Basic Patent Knowledge #1: A patent does NOT protect the innovator. It protects the one that filed the patent. It’s called the first-to-file doctrine and is used almost everywhere on this planet now.

Basic Patent Knowledge #2: A patent is a regional right. Typically limited by country borders. So to patent something globally you need to file a lot of patents at a lot patent offices in a lot of countries. That can become quite expensive.

Basic Patent Knowledge #3: A patent is presumed to be valid without a doubt. Even if you can prove that the patented thing existed before the patent was filed (in US 12 monthe before it was filed) you still need to go for an all-out invalidation process to overcome the presumed validity. This can take a long time and again is very expensive.

Basic Patent Knowledge #4: In some jusridictions (Europe as an example) the non-commercial use of patented technology is perfectly OK. Only infringement on a commercial scale causes damage.

Basic patent knowledge #5: A patent is an exclusive right. There is no rule that you must license it to others. There’s also no rule that you actually must produce something that uses the patented technology. Thus you can file a patent, sue anyone that infringes and refuse to license it at all.

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3 thoughts on “6 things to know about patents, the short form.”

  1. Esp point 5 is ridiculous: the idea behind patents was to increase the dissemination of language and prevent an inventor from sitting on the knowledge in fear of others stealing it. That doesn’t work if you allow them to not license their invention…

    1. jospoortvliet – your comment regarding point 5 demonstrates a common mis-perception. Once the patent issues (or is published) there is no “sitting on the knowledge” it is out in the world for all to see. Once the patent expires (or if it does not issue, is abandoned or id invalidated) the knowledge reflected in the patent is available to all without restriction.
      In addition, since your patent makes that knowledge available, it creates an incentive for others to invent around your patent. That is, to invent something that does the same thing or a better thing but does not infringe your patent. In the US, that is the PRIMARY goal of the patent system – to promote the PROGRESS of the arts and sciences. That progress is BEST promoted when people are forced to design around, or improve upon, someone else’s invention BECAUSE they will not license it. If a license is available, then the licensee will be using existing technology and no advancement is required or promoted.
      Another reason why an inventor does not have to license is that (at least in the US) a patent is an EXCLUSIONARY right. If they MUST license, they lose the only right a patent affords. Moreover, because it is an exclusionary right, the inventor/owner does not automatically have the right to even do what THEY patented because someone else might have a patent that covers a more basic aspect or some other aspect reflected in the patent. This is a concept generally called “dominating patents.” For example, presume you invented and patented a car that operates by directly powering wheels from a motor. As soon as that patent issues, the knowledge of your invention is available to the world. I later invent a car having a transmission that allows one to vary the amount of power provided to the wheels by the engine and patent it. During the term of our patents, I cannot make cars according to my invention if it would infringe your patent. If I asked you for a license, and you refused, I can’t make cars, but if you want to include a transmission in your car, you can’t without a license from me. Thus, you would have the incentive to either develop a different transmission that does not infringe my patent or perhaps enter into a cross license with me.

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