1. Patent

2. The Patent Class

3. This American Life Patents makes it safe to share your ideas
, +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!

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

5. 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”

6. Patent Basics
35 U.S.C. (from Constitution) protect ideas applied to inventions, NOT just ideas themselves
Receive limited monopoly of 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?

7. 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”

8. 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.

9. 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

11. 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).

12. 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

13. 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”

14. 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)

15. 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

16. 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

18. 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

19. 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

20. 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?