Natural Entrepreneur: A Patent, By Definition

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A Patent, By Definition

What is a patent?

by Todd A. Sullivan, Hayes Soloway, Manchester, NH

The issuance of patents in North America dates back to the early colonial days and the first patent law was enacted in April 1790. But what is a patent? Most people have a good idea what a patent is— something an inventor gets that enables them to keep other people from stealing his or her invention.

According to Merriam-Webster’s Collegiate Dictionary (11th ed.), a patent is “a writing securing for a term of years the exclusive right to make, use, or sell an invention.” Interestingly, Black’s Law Dictionary (7th ed.), the most popular legal dictionary in the United States, carries the same definition. However, as any second or third year patent law student at Pierce Law will tell you, this definition is flawed. Let's begin with some background.

The first step in obtaining a patent is the patent application. Prepared by the inventor, and generally with the assistance of a patent attorney, the application spells out the metes and bounds of the patent rights, primarily in a section of the application referred to as the claims. If the United States Patent and Trademark Office reviews the application and determines the inventor is the first person to have invented the device as described in the claims, the application issues as a patent.

There are a number of reasons for why the United States created its patent system, the primary reason being to foster invention and innovation. One requirement of a patent application is that it disclose how to create the invention such that someone having only ordinary skill in the appropriate technical art can reconstruct the invention. This public disclosure is intended to advance the technical art. In exchange for this disclosure, the patent holder is empowered to keep others from making, using or selling the invention for a fixed period of time. This exchange has assisted the Wright brothers and their airplane, Walt Disney and his animations, and many other famous inventors who have delivered valuable contributions to society.

The patent system is enjoying more activity today than it has at any other time of its existence. In December 1976, the United States issued its four-millionth patent since the first patent issued over one hundred and thirty years ago. In 1991, the United States issued its five-millionth patent, less than fifteen years since the four-millionth, and in 1999, the six-millionth patent was issued. At present, the only hindrance to patents being issued faster is the United States Patent and Trademark Office’s ability to keep up with their workload.

Patented inventions cover a wide range of inventions. In one famous Supreme Court decision, the Court stated Congress has intended “anything under the sun that is made by man” is patentable subject matter. As if to drive home that point, in a single June day this year, New Hampshire inventors were issued patents for dog containment systems, pump control systems, heterointegration of materials using deposition and bonding, a method for making a shaving razor handle, and CTLA4-immunoglobulin fusion proteins. Indeed, patents may be issued for computer programs, methods of doing business, new types of plants, and the appearance of physical objects.

Regardless of the invention, the purpose of any patent is to foster a business goal. Some inventors attempt to build long-term businesses around their inventions. Others attempt to sell or license their inventions immediately. And still others initiate a business around their invention before selling the business and the technology. Ohio Design Automation (“Ohio-DA”), of Nashua, NH, recently sold their business for approximately $12 million in an all-cash transaction. A key element of the sale was Ohio-DA’s patent-pending InterComm technology, which facilitates engineer collaboration across software platforms. The company, founded ten years ago, has over 400 clients in more than 20 countries.

So what is a legally more accurate definition of a patent? To revise the aforementioned Webster’s definition, a patent is a writing, securing for a term of years, the right to exclude other from making, using, or selling an invention. This revision is subtle but points to an important aspect of patents. Specifically, patents do not confer any right to make use or sell your invention. Rather, they only extend your right to exclude others.

As an example, if you were the first person to invent a chair and you received a United States patent on the chair, you have the right to exclude all others from making, using or selling chairs. If your neighbor follows your lead and invents a unique type of chair - a recliner - and receives a United States patent on the recliner, that excludes all others from making, using or selling recliners. As you have the right to exclude others from making, using or selling a chair, you can keep your neighbor from making, using or selling the recliner. The recliner patent does not grant the inventor all rights to make, use or sell recliners, but rather it only gives the right to exclude others from making, using or selling them.

Another less technical definition of a patent would be a legal tool used to transform innovation or research and development costs into a business opportunity and, more importantly, a business advantage.

Todd A. Sullivan, an associate with Hayes Soloway, is a New Hampshire Patent Attorney and graduate of Franklin Pierce Law Center. Todd and Hayes Soloway will be contributing a series of articles over the coming weeks directed toward patent information for the independent inventor. He can be reached at tsullivan@hayes-soloway.com

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