Intellectual Property for CS Students: Patents - Introduction






Trade secret

Patents, like copyrights, are a form of intellectual property that stem from the Patent and Copyright Clause of the Constitution. [1] Patents seek to promote the progress of "useful arts" by granting inventors a limited monopoly over their inventions, in exchange for the inventor disclosing her invention to the public. The end result is that a valid patent over an important piece of technology is an extremely valuable piece of property.

Patents have been a part of the law of the United States since the First Congress passed the first Patent Act in 1790. [2] Today, we are operating under the Patent Act of 1975, as amended in 2000. [3] Over the years, the patent right has been expanded, altered, clarified, and internationalized. Just five years ago, a patent was good for 17 years from the date of issue; today, a patent remains viable for 20 years from the date of application for the patent. [4]

What makes a patent so important? The entirety of a patent is the right to exclude others from practicing the invention (by "practicing the invention" we mean building, using, or otherwise invoking the invention). [5] However, a patent-holder does not necessarily have the right to use the invention. What this effectively means is that a patent-holder is the only one that may use the invention, but the state can say that no one may use the invention. For instance, it may be possible to obtain a patent on a new method of making cocaine. However, making cocaine is illegal without a license. So, while the patent-holder can prevent others from using the invention, the state can still tell the patent-holder that they may not use the invention.

Unlike copyrights, patents do not automatically come into being when a work is created. The inventor must go through a complicated application process, known as "patent prosecution," before the Patent and Trademark Office (PTO). There are several basic hurdles for an invention to pass to be eligible for a patent. First, the invention must be valid statutory subject matter for patenting. Second, the invention must be useful. Third, the invention must be novel. Fourth, the invention must be non-obvious.

The patent statute lays out several low-level requirements for patenting. Section 101 of the Patent Act describes what inventions are eligible for patent protection. [6] One cannot patent "laws of nature." Maxwell's equations or Einstein's Theory of Relativity cannot be patented; "they are manifestations of laws of nature, free to all men and reserved exclusively for none." [7] In addition, for some time one could not patent living things. Today, living things can be patented. [8]

Another group that could not be patented for a long time was software and business methods. As of 1998, the infamous State Street case placed patents for online business methods implemented through software squarely within §101 subject matter. [9]'s One-Click patent, and a litany of other questionable patents, are the legacy of State Street. [10] Business method and software patents will be discussed at the end of this overview.

Today, there are only three areas where one cannot receive patent protection: "laws of nature, natural phenomena, and abstract ideas" [11]. Even though laws of nature cannot be patented, machines that take advantage of those laws are explicitly within the subject matter of patents, as are processes for utilizing those laws. The net result is that, while a raw algorithm cannot be patented, machines and processes (including computer software) for implementing such an algorithm are patentable. [12] For instance, a process for converting decimal numbers into binary numbers and back is not patentable subject matter. [13]

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