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Posted July 24, 2013.
You’ve probably noticed lists of recently issued patents in some business publications. This newspaper runs one regularly. Here’s what these lists do and don’t signify:
1. Most patents are owned by companies who hire employees to invent, not by independent, individual inventors. Names of individual inventors are usually listed, but the name of the company to which the patent rights are assigned is not always listed. (This paper lists the assignee.)
Sometimes a patent is assigned to a company you’ve never heard of. It could be a small company, but it also could be an unpublicized affiliate of a well-known company. That may be done for various reasons, such as taxes or to mask a parent company’s actions.
2. An issued patent does not represent new technology. The average time in the U.S. from patent application to patent issuance is about two-and-a-half years, although that varies by type of technology. By the time a patent issues, its technology usually is already being used in commerce if it will ever be used.
3. A patent frequently does not represent a free-standing product. Many patents do not cover entire products, and many products incorporate technologies from more than one patent. Many patents are improvements to existing technology.
For example, in swim racing, there frequently is a problem with your goggles rolling down your face at the dive-in. Swimmers call that “eating your goggles.”
What if I invent an automatic tensioning system that temporarily makes the goggles tighter at the dive-in and then relaxes, so the swimmer’s eyes don’t get uncomfortable?
My invention would not be a free-standing product – it’s part of the goggles. If I make goggles utilizing the auto-tightening system, I might end up using someone else’s patented technology in other parts of the goggles, such as how the eyepieces are made. If so, I might need to buy a license from that other patent owner in order to make my goggles with the special tensioning system.
Some product areas are so thick with patents that it’s hard for a new or small player to enter the field. For example, look at the smart phone patent war between Apple and Samsung. Samsung received over 6000 related U.S. patents during 1993-2011, and Apple received a little under a 1000 related U.S. patents during that time.
4. The title of a patent doesn’t tell you much about whether it is broad or narrow. The claims in a patent define the scope of the invention, not the title. The claims describe the elements of the invention and how they relate. A patent claim can be very narrow in scope.
Also, most patents contain more than one claim related to the same technology. The title reported in the paper does not capture those various claims.
5. Getting a patent does not mean a product using the technology is being or will ever be made. Many patents don’t have commercial value.
Some companies seek some patents for defensive reasons − just to prevent others from getting a patent on the same technology.
Some companies pile up patents on technology they don’t use just to build a negotiating position in case they get embroiled in a patent-infringement dispute. And some patents are just trophies, so the inventor can say he got a patent.
6. Getting a patent does not mean you’ll make any money, even if your patent covers a valuable technology. Turning a new technology into a profitable product is hard and expensive.
Persuading others to pay to use your patented invention is hard. If they refuse to pay but use the technology anyway, about the only way to force payment is to sue for patent infringement.
Patent infringement generally is the most expensive type of litigation there is. Even if you win, you might not recover more than you spend in the litigation.
7. Patents are not invincible. Patents often have latent flaws and later get invalidated for a host of possible reasons, such as the inventor having failed to disclose related, older inventions to the U.S. Patent Office.
Also, the U.S. Patent Office has varied its position over the years on what technology can be patented. Consequently, some patents might be revoked as comprising non-patentable subject matter if tested in court.
Areas of patent validity uncertainty include, software inventions, medical tests and various some kinds of genes-related inventions.
Generally speaking, you can’t tell from just reading a patent whether it’s likely to fail unless and until it’s tested in court.
Written on July 23, 2013
by John B. Farmer
© 2013 Leading-Edge Law Group, PLC. All rights reserved.