Patent The Patent Class This American Life Patents

Patent

The Patent Class

This American Life • Patents makes it safe to share your ideas • 2004 -2009, +70% patent lawsuits and +650% license requests • “Patent Troll” – Hoarding IP, make no products, look to sue • Lawsuits slow innovation; raise costs • Re$ource based activity; those who can pay can play • Software patents used to be copyrightable only

Leadbeater • Market created by consumers; companies follow • Disruptive inventions and radical innovations come from outside the industry

Leadbeater Cont'd • Bottom up creativity vs. Top down – Producers consumers' ideas • Innovations are collaborative, develop slowly • Payoff for innovation is greatest when uncertainty is greatest – Consumers help dictate the uses of an invention (invent the USE); uses of invention worked out through use – New ideas are disruptive and don't happen within large organizations. . . corporations follow. Emerging markets are creative

Patent Basics • 35 U. S. C. (from Constitution) protect ideas applied to inventions, NOT just ideas themselves • Receive limited monopoly of 15 -20 years, in exchange for making idea “public domain” • While idea is public domain, to use it a LICENSE must be obtained from patent holder (license=$/permission) • By applying, the idea is made known to the public

Patent Basics Cont'd EXCLUSIONARY right granted to natural people (inventors), assigned or licensed to corporations • NO corporate authorship!!! • NO FAIR USE!!! • Employees usually must assign patent to corporations when made under employment • Limited property right, shared w/ public 15 year (design patents) and 20 -year durations – Extendable for patents that must go through

Filing • $$$$$ and knowledge for application • Patent examiner (lawyer) at USTPO • 20 rejections for every allowance • Unless inventor has capital/knowledge, must partner w/ corporation or sell • “Patent Pending”= a warning that patent application filed; protect against injunction, etc.

Filing Cont'd • Costs $5000 -$20, 000 in U. S. ; $100 k + for PCT • The patent application filing fee for a basic utility patent is $330, which is in addition to a $540 utility patent search fee and a $220 examination fee, plus patent maintenance fees of $980 after three years • Provisional (12 month to protect idea) vs. Non -provisional (a full patent) • 97% of patents make less money than cost to obtain

First to File v. First to Invent • Steps of Invention in US – 1) conception – 2) reduction to practice (filing patent and uses) • America Invents Act of 2011 – US a first to invent to a first to file system – Went into effect March 16, 2013 • US was only FTI, rest of the world was first to file (FTF).

Edison Phonograph • 5 main parts, based on prior art: – 1) the trumpet, sketched by da Vinci and used in communication systems for the Duke of Milan – 2) the diaphragm, articulated by Hippocrates of Greece and used in drums – 3) the stylus, used in pictographs by Egyptians and Assyrians – 4) moving cylinders, used in lathes – 5) the feed screw, an innovation of

What Does Patent Protect • Plant patents: asexually reproduced plants (non seed; rooting, budding, grafting, etc) • Design patents: ornamental design; NOT function • Utility patents: “patents for invention”; 90% of patents are these • Improvement patent: if technology underlying the improvement is still patented, new inventor cannot exercise the improvement w/out license, cross license or “license pool”

But not. . . • Cannot patent products of nature (a tree or water) or laws of nature (fruit rots, gravity) • Cannot patent mathematical theory, just how it's applied in inventions • Cannot patent abstract ideas (like math) • BUT, medical procedures and living organisms are PATENTABLE • After 2013, cannot patent DNA (20% of human genes had been patented)

Utility Patent • Invention of a new and useful process, machine, manufacture, or composition of matter, or a new and useful improvement thereof • Functionality of item – Machine: moving parts – *Article of manufacture: solid (smart phone, hammer, ceramics, chairs) – Composition of matter: chemical compound – Method/Process: means to an end (software)

Design Patent • Ornamental design on utilitarian objects (*articles of manufacture) – Beverage containers, jewelry, furniture, computer/phone icons, novel fonts, building • Similar to “trade dress” but trade dress assumes “secondary meaning” • Duration of 15 years (formerly 14 pre-2015) • Applies to design, NOT function – Can be invalidated if design has practical utility

Patentability Requirements • Novel: the same invention was not made by someone else • Non-obviousness: can't be just a combination of prior works; most challenging hurdle and core requirement of patentability • – Must be an “inventive leap” – Mt. bike would not be patentable Utility: if it works, it has utility – “useful Arts” from Constitution

2013 Supreme Court Decisions • Assoc. for Molecular Pathology v. Myriad Genetics – Can "products of nature" be treated the same as "human-made" inventions? – Court says NO, but scientist made DNA and processes still patentable (c. DNA=complementary) Bowman v. Monsanto Company • – Can you save seeds from patented seeds? – Farmer claim patented exhaustion (like “first sale”) – NO, infringes on patents. Buy seeds=license for underlying patent

Patent Absurdity • Patent and the Remix? – Use “prior art”: any technology has other technologies and patented ideas in it – Mix elements together to make something new • Patent about how something works, no what it does per se • If no patent, why innovate? • These technologies also allow us to infringe (i. e. computer/software). . . ironic? • The problem of software patents?