Ten Misconceptions about Patents

Over the years, a number of misconceptions have mushroomed around patents. Here are some of the most common ones.* Patents are enforced by the U.S. Patent and Trademark Office. Once the office approves a patent, its role in the process ends. Discovering and dropping the hammer on patent infringers is the responsibility of the patent holder.* The USPTO will not issue a patent if it infringes on other patents. While the office may discover potential infringements during its review of a patent, that’s not its primary concern. Its chief charge is to determine the patentability of an application. That means is it new? Is it useful? Is it non-obvious? Whether or not a patent infringes on another is best determined by the patent applicant before a patent is scrutinized by a USPTO examiner.* Patents give their owners the right to implement an invention. Actually, patents give their owners the right to prevent others from using their invention. Let’s say you come up with the idea of putting a radio in a car. You file and are granted a patent which claims a car having a radio. You now have the right to exclude others from making a car with a radio, but you do not have the right to make or sell a car with a radio. Why? Because the person who owns the patent for a car excludes you from making a car – with or without a radio – in the first place.* To infringe a patent all the claims in the patent must be incorporated into a device. In reality, a device only need include all the elements of a single claim in a patent to infringe that patent.* A working prototype of an invention must be built before it can be patented. Before 1880, that was true. It isn’t true today.* “Patent Pending” means the patent filer has a lock on the invention. When someone files for a patent, they can use the “Patent Pending” warning on products incorporating the invention in their patent application. Just because a patent is pending, however, doesn’t mean it will be approved. Lots of things can happen between the time a patent is filed and it’s finally approved, including its abandonment by its author during the lengthy patent process.* Inventorship isn’t important; anyone can be named as a co-inventor when filing for a patent. Co-inventor shouldn’t be treated as a courtesy title. In the United States, improper attribution of inventorship can nullify the enforcement of a patent. If an inventor wants to acknowledge friends, relatives and co-workers in a patent application, it can be done by naming them as assignees or investors. People named as co-inventors should have made an “inventive contribution” to at least one claim in the patent.* It’s OK to let patents lapse because inventors can always get new ones. While it’s true that lapsed patents can be renewed, doing so may reduce a patent’s potency. Changing conditions during the life of a patent can impact the breadth of its original claims. When an inventor attempts to reassert the claims in a patent that’s lapsed, he or she may find that the claims may have to be scaled back to meet new market conditions.* A patent search must be conducted before applying for a patent. Such searches aren’t required, but, in most cases, it isn’t wise to proceed without them. Not only do they allow potential areas of infringement to be spotted, but they can help improve the claims in an application, making them as strong and broad as possible.