II. Why Patents?

A patent is a way to get an inventor of a new device or method to reveal that device or method to the public, so that people can learn how to make and use it and possibly develop improvements. In trade for describing the invention in a publicly-available document, the patentee is given the exclusive right to make and use the invention for a period of time. But after the patent expires, anybody can practice (make, use, or sell) the invention.

Unlike trade secrets, which are protected because information is kept private, information about how to make and use a patented invention is made available to the public in trade for legal protection. Even the word “patent” means “open to the public, readily visible or intelligible,” and what we call a patent is really short for “letters patent” – an open government letter granting a privilege. Besides patents protecting inventions, there are also, for example, patents that convey land from the government to an individual or group.

Perhaps the best illustration of how a patent benefits the public by encouraging disclosure in return for a period of exclusivity is the plain-paper copier (the “Xerox machine”). Before the invention of that copier, copies had to be made using expensive and messy systems like photography, heat-sensitive paper, or mimeographs and ditto machines. That changed when a patent attorney came up with an electrostatic copying method. Because the patent attorney was the first to invent the technique, he received a patent giving him the exclusive right to practice the invention for 17 years. (The duration of a patent has changed somewhat since; it is now 20 years from the date the patent application is filed, extended if there are delays caused by the patent office.) During the patent’s term, the Xerox company was formed to build and market the patented copier, and if you wanted such a copier you could get it only from Xerox. By the time the patent expired, Xerox was an established company, and companies like IBM and Canon joined Xerox in building and marketing plain-paper copiers.

There are really three types of patents – utility, plant, and design. Our discussion will be limited to utility patents, which are the most common type. Design patents protect the ornamental design of an article and not its functions, and are therefore sort of a super-copyright for designs that are truly new and nonobvious, rather than just not copied, the requirement for copyright. Plant patents cover asexually-reproduced plants.

Unlike copyright, where legal protection comes into being when original expression is fixed in a tangible medium of expression, or trade secrets, which exist as long as they are kept secrets, patent protection requires the submission of an application to the United States Patent and Trademark Office (USPTO, also called the PTO or Patent Office), an agency in the Department of Commerce. The Patent Office examines the application and, if it is satisfactory, grants the patent.

Next section: What Can Be Patented