How Patents Work

In 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 the copyright. Copyrights are intended to protect "original works of authorship" that are in a tangible form. 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 copied or reproduced without the copyright-holder's permission. In the United States, the protection extends for the life of the copyright-holder plus 70 years (for works created after January 1, 1978). If a company owns the copyright, the protection lasts anywhere from 95 to 120 years depending on whether or not the work was published [ref].

Copyrights do not protect the ideas put forth by a particular piece of art; they only protect the way in which those ideas are presented. In this article, for example, the information about copyrights and patents is not owned by anybody, but the sentences and paragraphs used to explain this information are copyrighted by this Web site. In the United States and many other countries, any original work of authorship is automatically copyrighted as soon as it is created. To learn more about copyrights, see What are copyrights and patents?.

Other sorts of intellectual-property protection are much narrower in scope. Trademarks protect designs 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 to profit (the recipe for Coca-cola, for example).

Of all of the forms of intellectual-property protection, patents are the most complex and tightly regulated. Patents are basically copyrights for inventions, defined by U.S. patent law as "any new and 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, rather than the tangible form of the invention itself. Consequently, patenting something is a much trickier procedure than copyrighting something.

Patents are the most complicated type of intellectual property, as well as the most restrictive. 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 already patented, has already been on the market or has been written about in a publication. In fact, you can't even patent your own invention if it has been on the market or discussed in publications for more than a year.

The vast majority of inventions are actually improvements on existing technology, not wholly new items. 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 when Jerome Lemelson first submitted the idea to the patent office in 1977, it was rejected as an absurd notion. When the invention was eventually patented, it launched a flood of portable video machines. If you search for the term "camcorder" in the U.S. Patent Office's database, you will find more than a thousand 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 a person of standard skill in the area of study wouldn't automatically come up with the same idea upon examining the existing invention. For example, you can't patent the concept of making a toaster that can handle more pieces of bread at once, because that is only taking an existing invention and making it bigger. For an invention to be patented, it must be innovative to the point that it wouldn't be obvious to others.

Another condition for patenting something is that the invention is "useful." Generally speaking, this means that the invention serves some purpose and that it actually works. You couldn't patent a random configuration of gears, for example, if it didn't do anything in particular. You also wouldn't be able to patent a time machine if you couldn't construct a working model. Unproven ideas generally fall into the realm of science fiction, and so are protected only by copyright law. The "useful" clause may also be interpreted as a prohibition against inventions that can only be used for illegal and/or immoral practices.

All a patent really does is give the patent-holder the right to stop others from producing, selling or using his or her invention. For the life of the patent (20 years in the United States), patent-holders can profit 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; the government does not go after patent or copyright infringers. To enlist the government's help in stopping 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 careers battling infringers. Many large companies have been accused of appropriating inventors' ideas without compensating them for their work. Though Lemelson had patented crucial components in some of the most momentous technology of the 20th century, he spent much of his life struggling to get by. His critics charged that most of his ideas were based on projects companies were already pursuing. 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 the Lemelson Foundation, a philanthropic organization dedicated to promoting and rewarding American inventors.

While patent law does protect most forms of invention, it does not apply to all great ideas. In the next section, we'll see what sort of things can be patented and which cannot.

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 must be fairly vague. In addition to standard technological machines and machine advancements, you can also patent certain computer programs, industrial processes and unique designs (such as tire or shoe-tread patterns). While none of the elements in these creations are new, the inventor may have combined them in a unique and innovative way. In the language of patent law, this constitutes an invention.

Some sorts of ideas are considered outside the realm of patents. No matter how innovative and beneficial they may be, certain notions are automatically public property the minute they are uncovered. The most prevalent examples of this are discoveries in the natural world. Scientists cannot patent laws of the universe, even though defining those laws may revolutionize a particular industry or change how we live. Einstein's Law of Relativity, for example, revolutionized the world of physics and will be forever linked with the man who devised it, but it has never been owned by anybody. This principle existed long before humans did, so, logically, it cannot be any person's intellectual property.

Scientists cannot patent a newly discovered plant or animal, either, though they may be able to patent a new plant or animal that was produced through genetic engineering. This is similar to the patenting of processes and computer programs: A genetic engineer didn't create any of the parts, but the 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 the next section, we'll see why patents are so important to a society.

So far, we've seen 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 or another in most all developed nations, because it is so important to a country's development. Patents affect society in a number of a ways, but at their core, they serve a very basic function: They help encourage the advancement of science and technology.

Patents do this in two major ways:

Patents motivate individual inventors, but they also motivate large companies. They are particularly important to chemical, computer-technology and pharmaceutical firms. In these markets, your success might be wholly dependent on having exclusive rights to innovative products. Intellectual property makes up a huge chunk of these companies' assets. Currently, IBM leads the pack in the invention 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 given control over the invention, though the patent may officially go to the individual inventor. This arrangement varies depending on the country and the nature of the employee's contract. If you are contracted 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 holds for 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.

­Patents 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 original work of art is automatically copyrighted as soon as it is put into some tangible form. To strengthen that 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 a lawyer.

Let's say you're a brilliant inventor, and you come up with an ingenious teleporter, a device that can move people across the room by scanning them, replicating them exactly at another point and destroying the original. To make things simple, let's assume that you only want to patent your idea in the United States. Once your prototype is finished, and you've successfully beamed your cat and a few 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 single quantum particles and a highly-sensitive medical scanner that analyzes the 10²⁸ atoms that make up the human body and stores the information in a large database. Your machine uses a similar scanner to catalog the tiny particles that make up a person, and replicates these particles in the same sort of way as the quantum teleporter. But you have added the crucial element that makes human teleportation possible: a sophisticated computer system that can arrange the replicated quantum 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 grand scale. Confused as to how you should proceed, you decide to enlist an expert's help. There are two main types of patent professionals: patent lawyers and patent agents. Patent lawyers are attorneys with a science or technical degree who have met the patent office's qualifications (their professional credentials have been reviewed and they have passed a qualifying test). Patent agents are people who have met the patent office's qualifications but are not recognized as attorneys. Some inventors work through the patent process themselves (called working pro se), but most hire a patent lawyer or patent agent early on in the process.

A patent lawyer performs a number of different tasks for the inventor. Let's take a look at how your lawyer (let's call her Suzy) would help you patent your teleporter.

Once you have your brilliant idea, and you've found a good lawyer, things get a little more complicated and a lot more expensive. The first thing Suzy wants to do is review your teleportation idea in minute detail. To proceed efficiently through the patent process, she needs to understand the machine inside and out (this is why patent lawyers need a good technical background in addition to a law degree).

Once she is familiar with your invention, Suzy begins a thorough patent search of her own to uncover all of the related ideas that have already been patented. At this point, Suzy may uncover a patent (or patent application) that you had not found, and she may tell you that your machine cannot be patented because it is too similar to the earlier invention. Or she may suggest that you focus in on one particular aspect of the invention -- perhaps the device that assembles the atoms in the correct order. This initial search and consultation can cost thousands of dollars, but may be worth the money if it saves you from trying to patent an unpatentable idea (which would probably end up costing a lot more).

The Application

If Suzy believes you should proceed, she starts putting the patent application together. The application is made up of a number of different parts. It must include:

If you hire a patent lawyer, the application will probably be the biggest expense in the patenting process. 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 it will form the basis of your patent.

Once the draft of your application is complete, Suzy shows it to you and you work together to correct any errors. Next, you send the application on to the U.S. Patent Office, along with several hundred dollars in submission fees. After submitting the application, the only thing left to do is wait for it to work its way through a government patent examiner's stack of work. In this period, you may begin marketing the teleporter, and you may legally label it "patent pending." When the examiner finally reviews the application, he or she may "allow" (approve) the application as it is submitted or reject the application on the grounds that it is too close to an earlier invention or that the wording is problematic.

Most patents are rejected on first application, and this is not necessarily the end of the road. The examiner will detail exactly why the application was rejected, and you and your lawyer may be able to address these issues by narrowing the focus of the patent. If you choose to go this route, your attorney writes up an amendment and submits the application for a second review. At this point, the examiner might approve the amended application, reject the application 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 was wrong to reject the application.

Once the examiner is satisfied with your application, you are issued a "Notice of Allowance." All you have to do at this point is pay the patent fee (which runs upwards of $645). During the life of the patent, you have to pay periodic maintenance fees, which come out to thousands of dollars. But if your idea is good enough, the reasoning goes, you will make much more money by licensing your patented idea.

The entire patenting process can take anywhere from a year to five years. The life of the patent actually begins at the application date, not the approval date, so few inventors wait around for final patent approval before selling their invention. An inventor's claim to an idea is also based on the invention date. Whoever completes an original invention first is granted the patent. In some cases, two or more inventors submit the same invention around the same time. When this happens, the patent office must declare an "interference," a trial-like proceeding that determines who was the first inventor. 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 off your idea in another country if it is not patented there. If you plan to patent the invention in other countries, 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. While the 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 is what makes it all worthwhile.

For more information on patents and related topics, check out the links on the next page.