Hi, I'm Stan Muller. This is Crash Course: Intellectual Property and today we're talking
about patent law. That's why I'm wearing these fancy patent leather shoes. They're a little
too small and uh, I had a hard time putting them on. If only somebody would invent a new
useful and non-obvious tool for forcing feet into too small shoes. Mark, can I take these off now?
[Theme Music]
A patent is a grant by a government that allows an inventor to maintain a monopoly on the
use and development of an invention for a limited time. Patents allow inventors to prevent
or exclude other people or companies from manufacturing, selling, or using their patented
inventions. Governments grant these exclusive rights in exchange for the clear and detailed
public disclosure of inventions.
So here's the deal. You invent something awesome, explain how you did it in patently obvious
terms, we'll let you be the sole owner for a couple of decades or so which should give
you enough time to make some money off the thing.
Ideally, you'll get rich for your inventive efforts before the term expires or maybe you'll
pour all that money into more research and develop new patents.
The notion of giving talented inventors and innovators a limited monopoly in exchange
for their instructing the rest of their less talented fellow citizens is not new.
It's generally accepted that the first systematic patent law was developed in Venice, a hotbed
of Renaissance Industrial activity. The 1474 Venetian patent statute sums up the economic
rationale of patent law pretty nicely.
"We have among us men of great genius, apt to invent and discover ingenious devices;
and in view of the grandeur and virtue of our city, more such men come to us every day
from diverse parts. Now, if provision were made for the works and devices discovered
by such persons, so that others who may see them could not build them and take
the inventor's honor away, more men would then apply their genius would discover, and
would build devices of great utility and benefit to our commonwealth."
Wow. These Venetians really thought a lot of themselves. "Grandeur and virtue of our city."
This idea of granting exclusive rights to inventors to encourage discovery, spread throughout Europe,
into England and then to the United States, where it was incorporated into the U.S. Constitution.
In order for an innovation or invention to be patentable, the invention must satisfy
five requirements. We'll look at all of these requirements generally, and we'll look at
the patent for our trusty liquid-filled die agitator containing a die having raised indicia
on the facets thereof. Magic 8 Ball's patent was issued in 1964 and did it meet all these requirements? Yes.
So this seems a little circular, but the first requirement is that the patent's subject matter
be patentable. The categories for patentable subject matter are defined as broadly as any
process, machine, manufacture, or composition of matter, or improvement thereof. The Supreme
Court has interpreted this to mean that anything under the Sun that is made by human beings
is patentable. However broad this definition might be, certain things like, the laws
of nature, physical phenomenon, abstract ideas, have consistently been held not to be patentable.
The distinction here is that the innovation has to be the product of human inventiveness,
and not the product of nature.
The Supreme Court recently looked at this issue in a 2013 case involving a biotech
firm that had isolated human DNA linked to ovarian and breast cancer. The company argued
that it had developed an innovative process for looking for mutations that might lead to cancer and isolating.
They argued that the isolated genes were the product of human inventiveness and therefore patentable.
The court disagreed, finding that a naturally occurring DNA segment is a product
of nature and not patent eligible merely because it's been isolated.
The Magic 8 Ball is certainly the product of human inventiveness, although it would
be fantastic if these were formed by nature, like if they washed up on beaches or maybe
there was a Magic 8 Ball tree. I use fantastic here in the sense that this is obviously a
fantasy. But, uh, mmm, what a world that would be.
So are you patentable subject matter or what?
It is certain.
The second requirement for patentability is that the invention be useful, which means
both that it has some identifiable benefit and that it's capable of being used. Patent
law often refers to a person of ordinary skill in the art. What they're talking about here
is an engineer or fellow inventor that can understand the technical information included
in the patent. This differs from like tort law, where the law often refers to a reasonable
person standard. Understanding patents requires a little more technical expertise. I mention
this because the second requirement relies on a person skilled in the art to accept that
the invention described in the patent is useful and that it works.
The Magic 8 Ball is very useful. It functions in the way that the patent claims it does.
It displays answers to yes-or-no questions such as, "Should I join the Merchant Marines?"
or "Will I die alone?" Are you useful?
It is decidedly so.
The third requirement for patent protection is that the invention be new or novel. Basically,
if somebody else already invented or patented a similar invention, you can't get a patent.
Going back to the case of our Magic 8 Ball, despite the fact that its application notes
that similar devices exist, the novelty of the 1964 version lies in the shape of the
die, which allows for a better question-and-answer experience.
Are you novel?
Outlook good.
The innovation must also be non-obvious. The test for non-obviousness is whether the innovation
and the prior art, by which I mean all that which has come before the innovation, are
such that the innovation as a whole would not have been obvious to a person having ordinary
skill in the art at the time the invention was made. This is kind of a difficult theoretical
task for a judge or patent examiner. Sometimes the most inventive leaps of logic yield solutions
that are so elegant that they seem obvious once you've seen it. The Magic 8 ball 1964
patent was for an improvement to the original invention. The inventor added many more sides
to the die and also added the all-important raised indicia: the raised lettering, so as
to prevent bubbling between the viewing screen and the die. It doesn't seem obvious to me.
Magic 8 ball, are you non-obvious?
Without a doubt.
The final requirement is enablement. Technically, this means "the specification of the patent
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 to make and use the same, and shall set forth
the best mode contemplated by the inventor of carrying out his invention." Whoever wrote
this doesn't understand the terms clear and concise. What they're saying is that the plan
submitted with the patent have to be clear and complete enough for someone else to recreate
the invention without too much trouble. Beyond this, the applicant has to describe the best
mode of making this thing happen. The inventor can't give people the runaround. If there's
a best way to recreate the invention in question, the inventor is required to disclose it.
This final step is essential to the underlying rationale of patent law. Without a clear and
accurate explanation of how to make and use the innovation, the public gets nothing in
return for granting the limited monopoly.
So, what's it gonna be, Magic 8 ball?
Can we make or use you based on the patent's description?
As I see it, yes.
There are 3 types of patents issued by the Patent & Trademark office: utility patents,
design patents, and plant patents. The 5 requirements we just talked about refer to utility patents.
Design patents cover any new, original, and ornamental, rather than useful, article of
manufacture. Apple is famous for their design patents and their utility patents.
Plant patents are granted to persons who first noticed the distinctiveness of a plant, then
reproduced it asexually, by grafting or cloning, rather than growing it from a seed. If you
grow it from a seed, you can't patent it. The plant must be novel and distinctive to
be granted a patent, which basically means that it has to have at least one significant
distinguishing characteristic to establish it as a distinct variety. So this is what
a plant patent looks like. Not a lot of them get issued relative to utility or design patents.
On a related note, the human-made plant, or a plant that's been genetically engineered,
can also be the subject of a utility patent. Provided it meets all the 5 requirements we
talked about. Often, these are plants that are resistant to certain herbicides or are
better suited to shipping. There's even a man-made variety of cotton that's resistant to pests.
Patents don't last forever. The term of protection for utility patents is 20 years, measured
from the date of filing. There are extensions of up to 5 years allowed for drugs, medical
devices, and additives. The current term of protection for design patents is 14 years,
and that's also from the date of filing. So patents are all about the money.
Let's talk about that in the Thought Bubble.
In terms of economic impact, patent law is arguably the most important branch of intellectual
property. There are legitimate questions about the role of patents and what types of research
and development patent law encourages. Does the law encourage more research into highly
lucrative erectile dysfunction medications than stuff like anti-malarial drugs? Should
developing nations be able to create public health exceptions for life-saving proprietary
medications? If so, then how would companies be able to pay for the development of these
medications or future life-saving medications without the assurance of patent protection?
And then there are non-practicing entities, often called patent trolls, that go around
acquiring huge patent portfolios, and then threaten to sue pretty much everybody. Patent
trolls bring these lawsuits despite the fact that they have no interest in developing or
manufacturing any actual products. This is their business model. Because of the high
cost of litigation, costs can range from about a $1,000,000 to $5,000,000 if this goes to
trial and the threat of massive damage awards. Most companies sued by patent trolls settle or agree
to pay a licensing fee to the trolls. There's legislation pending in Congress designed to address this issue.
Thanks, Thought Bubble. So the policy issues around patents are incredibly complex and
controversial, and this video is only a basic overview. The underlying purpose of patent
law, which is to reward inventors for their skill and effort, is often in direct opposition
to the public's interest in accessing those innovations. Whether it be life-saving medications
that costs thousands of dollars per pill or water treatment technologies that developing
countries can't afford to license. The trick is to strike a balance between providing inventors
with incentives and ensuring public access. How we attain that balance is still very much an open question.
Thanks for watching, we'll see you next week.
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