PATENTS FUEL THE FIRE OF GENIUS
Anthony B. Askew
Katrina M. Quicker
Your next idea could be your ticket to big business. Ideas lead to inventions and inventions can lead to products that are used by many people everyday, around the world. But what happens when these ideas and inventions are duplicated or even stolen? In the world of business, patents are essential to protecting inventions.
Everywhere you go today there seems to be a lot of talk about patents. From recombinant DNA to toothbrushes, many companies like manufacturers of personal protection equipment, acquire patents to protect the unique and exclusive nature of their ideas and products. By even associating the word patent with a product, added value and special capabilities are automatically attached to what might otherwise appear to be a commodity. Without patent protection, a product is vulnerable to copying.
So, what are patents? How are they obtained? What happens when one infringes a patent? What effect does infringement have on the owner of the patent, the infringer and the industry as a whole?
What is a patent and how do you acquire one?
Inscribed over the entrance to the federal Department of Commerce building in Washington, where the U.S. Patent Office was once located, is an apt and instructive quote from Abraham Lincoln: "The patent system added the fuel of interest to the fire of genius." As provided in the Constitution, the United States has always recognized the contributions of inventors, thinkers, and creators. Our patent system is a vital component of such recognition.
A patent strikes a bargain between the inventor and the public. For a twenty year term - calculated from when the inventor files the patent application - the government awards the inventor exclusive property rights. These rights include the ability to prevent others from making, using, offering for sale, selling, or importing into the United States the patented invention. In exchange for the right to exclude others, the inventor discloses the invention to the public in the pages of the patent document.
The process of obtaining a patent is straight forward. First, the inventor must file a patent application in the United States Patent and Trademark Office or "PTO". At the PTO, trained examiners review the application to determine if the subject matter is patentable. Depending on the subject matter of the invention, this review may take several years to complete. While the application is pending, the products of an invention may be marked with the designation "Patent Pending." If the application is eventually approved, a U.S. Patent is issued. Once the patent has issued, the products of the invention should be marked with the official patent number that the PTO assigns. Issue fees and subsequent periodic maintenance fees must be paid to the PTO in order to receive and maintain the patent.
What can be protected by a patent?
Ideas can run the gamut, but the PTO will only grant a patent to an individual or group of individuals whose idea is patentable; meaning the invention or idea must be useful, novel, and nonobvious. The idea can concern a process or method, a machine, an article of manufacture, a composition of matter or any improvement thereof. Thus, when considering the question of patentability, the following questions must be answered:" Is it useful? Meeting the useful requirement, also known as the "utility" requirement, is easy for most inventions. An invention is useful if it in some way benefits society. But if the invention claims to defy a law of nature, such as a perpetual motion machine, or claims things which are naturally occurring, it will not be patentable - such subject matter lacks utility.
" Is it novel? In contrast, the novelty requirement is much more complex. To be novel, the invention must be innovative, that is, it must be new. Novelty is judged against everything publicly known before the invention, and this body of public knowledge is termed "prior art." By way of example, the invention is not novel if, before the date of the invention, it was previously: (1) known by others in the United States (2) used by others in the United States (3) patented by others in any country or (4) described in a printed publication by others in any country. Likewise, the invention is not novel if, more than one year before the filing date of the patent application, it was (1) publicly used by the inventor or by others in the United States (2) on sale by the inventor or by others in the United States (3) patented by the inventor or by others in any country or (4) described in a printed publication by the inventor or by others in any country.
" Is it nonobvious? As the final, and most difficult requirement, the invention must be more than what would have been obvious to an individual having ordinary skill in the art at the time of the invention. Take, for example, a bicycle wheel that has five spokes instead of four. This wheel may be useful and may be novel if previous bicycle wheels only had four spokes. But if the addition of one more spoke only added slightly to the strength of the wheel - and that addition of strength is what one of ordinary skill would expect - then the five spoke wheel would be an obvious improvement over a four spoke wheel and therefore, unpatentable.
What is patent infringement and how do you stop it?
Patent infringement occurs frequently, not only in the United States, but around the world. In the United States, patent infringement results when someone makes, uses, offers for sale, sells, or imports a patented invention or its equivalent. When infringement occurs, the inventor, or the patent assignee, may file a lawsuit for patent infringement in a federal district court. In that lawsuit, both damages for infringement and an injunction to stop the infringement may be requested. If the infringement was willful - done deliberately and intentionally with knowledge of the patent - the damages may be tripled, with the costs of the lawsuit charged to the infringer. If an injunction is entered, the inventor (or the assignee) may negotiate a license agreement with the infringer, granting the infringer permission to continue its activities in return for future royalty payments.
In defending an infringement suit, an accused infringer may question the validity of the asserted patent, which is then decided by the court. The accused infringer may also maintain that what was being done did not constitute infringement. Infringement is determined based on the language of the patent claims - if the accused infringer's activities did not fall within the metes and bounds of the claims, there will be no liability. Patent infringement suits are extremely expensive. So, as with many lawsuits, patent infringement litigation is often settled with a grant of a license agreement.
What is an example of a U.S. Patent and its enforcement in the safety industry?
In 1997 the Tillotson Corporation, the parent company of glove maker Best Manufacturing, obtained U.S. Patent No. Re 35,616 for a flexible latex glove made from a synthetic nitrile polymer. This new glove, known as the N-Dex® Glove, has proven to be a dramatic improvement over other polymer gloves, especially natural rubber latex gloves. After donning, the low-modulus nitrile formulation causes the glove to relax, rendering the glove more comfortable to the wearer. Unlike the N-Dex® Glove, natural rubber latex gloves are characterized by a continuous squeezing force on the wearer's hand. In addition to this, the N-Dex glove does not contain natural rubber proteins, which are known to cause irritations and allergies in users.