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 Patents prevent innovation / Patents ARE NOT inventions shell companies: business transactions, but no operations, assets, or products/services Intellectual Ventures a shell troll!

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 consume 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 Innovation comes from “pro-ams”

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 Right to PREVENT others from using idea within a country (territoriality!!!) “World wide patent”=went through patent process in other countries; file for PCT patent (good in 184 countries) and then file in each country “nationalizing” Right to exclude, NOT permission to sell...WTF?

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 FDA Patent scope determined by claims in “file wrapper”

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.; $100k + 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 Average lawsuit costs for $1m value patent: $1.5m-$25m

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 Archimedes 6) the wheel

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) Process= manufacturing; Method=using product for result Business Method: e-commerce, banking, insurance Improvements: if you're invention improves on another patented idea, you must license it. If the improvement is on a public domain idea, you do nothing. 20 years term

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 Infringement=substantially similar

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 (cDNA=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? Promote and/or Stifle innovation? Chilling Effect? Can you copyright software?