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25th April 2012 (0 Comments)

The Foundation of Patent Law

 

Almost everyone has an idea about what patents are all about, and why patent laws and procedures exist in any case.  There is, as a matter of fact, a rather healthy movement among many technical people, business people and media types that holds that patents are inimical to economic progress and innovation in general.  These people are as wrong as they could possibly be, and their egregious error is because they have no clear understanding of the basic principles, or how the patent process works and why.  The common thread among people of the “patents-are-bad” persuasion is that the patent process exists to reward inventors for innovating, and that in exercising their patent rights inventors (and owners of patent rights other than the original inventors) typically prevent others from practicing the inventions that are patented.  They believe that this alleged activity by inventors and by enterprises that create or acquire patent rights, withholds new products and services from the public.  This is as wrong-headed as it could possibly be.

 

In a recently quite popular book “Where Good Ideas Come From:  The Natural History of Innovation”, author Stephen Johnson makes many very good points about the process of innovation.  He points out, for example, a very strong geographic and social component in the process of innovation.  The social component is that one person working in isolation may well (occasionally) have a really good idea, and act upon it, to the good of everyone; but that innovation is greatly enhanced by social interaction.  In situations where groups of people interact regularly and discuss their ideas, that is, reflect on the thoughts and ideas of one another, more and better ideas emerge and evolve.  It stands to reason if this is true (and it certainly is) that urban environments will be more conducive to innovation than will be rural environments.

It has been found to be true that not a lot of technical and commercial innovation of any sort springs from sparsely populated and underdeveloped regions on our planet, but that a great deal of innovation occurs in situations where groups of intelligent, educated and creative people are brought together and encouraged to talk about technology, their interests, their studies and research, and their plans.  Think about research institutions, University settings, and enterprises that encourage their employees to share and discuss their ideas.

 

Mr. Johnson in his book also discusses the concept of “The Adjacent Possible” first proposed by the eminent scientist Stuart Kauffman, who is a theoretical biologist who studies the origin of life and the origins of molecular organization.

 

The Adjacent Possible concept, as applied to innovation by Stephen Johnson, teaches that an innovator needs first to be familiar with the latest developments in the field in which he or she is contemplating a problem or an unmet need.  All of the existing solutions and developments in the field are the Adjacent Possible, and one might think of this as a virtual space surrounded by the existing solutions and developments, from which the innovator may pick and choose, consider in some detail, and arrive at the next thing that can be done and needs be done.  That is, that the existing technology is harbinger to the next innovation.

 

As new inventions are made the Adjacent Possible concept continues in that the new invention then becomes a part of the Adjacent Possible, and the Adjacent Possible thus dynamically evolves to be an ever more rich environment for new innovators to peruse to make ever more advanced inventions.  Mr. Johnson’s application of Mr. Kauffman’s concept is a brilliant description of how innovation occurs.  What Mr. Johnson did not realize at the time, and may yet dispute, is that in his description of the Adjacent Possible applied to innovation he made an eloquent description of exactly the intent, purpose and effect of patent practice worldwide.   I say he may dispute this, because he continued in his book to describe the patent process as a detriment to innovation, so I am sure that at the time he wrote the book he knew a great deal about innovation, but he was not remotely aware of the actual intent, purpose and practice of patent processes throughout the world.

 

The widely held but erroneous belief is that patent legal systems exist to reward inventors for making inventions by providing a limited monopoly to the inventor to practice the inventions substantiated for a period of time; and that the exercise of those limited monopolies withholds the inventions from the general public.  The law in most patent jurisdictions does say, after all, that the patent gives you the right to prevent others from making, using or selling your invention, as claimed, in the jurisdiction where it is patented.  The truth is, however, that patent systems were conceived and implemented to motivate inventors to share their ideas with the rest of us, to provide the Adjacent Possible.  The purpose is, and always has been, to give the general public access to the teachings of inventors, upon which individuals or groups of persons might improve and become inventors as well, providing ever more information to drive the engine of innovation.  The truth is also that vanishingly few inventors or owners of inventions exercise their rights by trying to make sure that no one practices the inventions.  To do so would be the least profitable way to assert one’s patent rights.

 

This is the first and arguably the most important basic concept you need to understand to best build an effective working strategy for you to accomplish effective protection of your own patent rights:  Legal jurisdictions in countries or regions of several countries, representing the people of those jurisdictions, offer to grant you a limited legal monopoly in return for you filing a patent application that fully describes your invention and how it might be practiced.  A part of Title 35 of the United States Code, Section 112, is presented just below:

35 U.S.C. 112 Specification.

The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.

 

There is similar legal framework in every patent jurisdiction on Earth.  The full, clear, concise and exact requirement is universal.  The limited monopoly is offered to persuade inventors to describe their inventions in this way, because a part of the deal is that your application will be published, in most cases even if it never becomes a patent. The publication of all of these applications provides the technical Adjacent Possible that others may study to make yet more inventions, which then dynamically become a part of the adjacent possible, as described above.  This is the process that has fueled innovation and commercial development throughout the world for a long time, and will continue to do so, unless ill-informed people manage to cripple the process, which will cripple the economic advancement that is fostered by patent law.

In the US applications are published at 18 months, unless the author agrees to NOT file in other jurisdictions, and requests non-publication until and unless a patent issues.  The result is that the great majority of applications are published in the US at 18 months from filing date.  Publication takes place on each succeeding Thursday, and the quantity averages six to seven thousand applications each week.  Publication is electronic in the uspto.gov Public PAIR system.  PAIR stands for Patent Application Information Retrieval.  This is open to any person with Internet access and a browser.  The European Patent Office has an electronic publication server as does Japan and many other jurisdictions.

So the first basic foundation block you need to understand is:

 

A patent is granted in return for a written full, clear, concise, and exact description of your invention, and of the manner and process of making and using it, after determination that the invention as claimed is indeed new and not obvious over prior art, with the understanding that your teaching of the invention will be published for others to see and use, whether or not a patent is granted.  This is so other persons may use your teaching to make further inventions.

 

This is the raison d’être for patent law and process everywhere, to fuel the Adjacent Possible to drive further innovation and accompanying commercial growth.  This simple fact leads to a lot of other rules and regulations in patent law.

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