When inventors come up with a new device, the first thing
they want to do is patent it. Patents are a
government's way of giving an inventor ownership of his or her
creation. For a certain period of time, patent-holders are
allowed to control how their inventions are used, allowing
them to reap the financial rewards of their work. Patents are
a palpable, legally-binding manifestation of a person's genius
and innovation; they allow a person to actually own an idea.
Image courtesy United
States Patent and Trademark Office
An illustration from Thomas Edison's 1879
patent on an electric light, his first such device.
Edison expanded on the ideas in this patent throughout
his career, claiming hundreds of patents related to
In this edition of HowStuffWorks,
we'll look at patents to find out what they are, how they work
and how an inventor goes about getting one. As we'll see,
patents are crucial to the progress of technology, and they
play a major role in the business world.
In most modern nations, there
is an established system for protecting intellectual
property, the product of a person or company's originality
and creativity. The broadest protection of this sort is the
copyright. Copyrights are intended to protect "original
works of authorship" that are in a tangible form. This
includes paintings, books, movies, choreographed dances (if
the steps are written down), music, architecture and all other
sorts of art. For a set length of time, these works cannot be
copied or reproduced without the copyright-holder's
permission. In the United States, the protection extends for
the life of the copyright-holder plus 50 years. If a company
owns the copyright, the protection lasts 70 years, but may be
renewed after this point in some cases.
Different intellectual property
Copyrights do not protect the ideas put forth by a
particular piece of art; they only protect the way in which
those ideas are presented. In this article, for example, the
information about copyrights and patents is not owned by
anybody, but the sentences and paragraphs used to explain this
information is copyrighted by HowStuffWorks.
In the United States and many other countries, any original
work of authorship is automatically copyrighted as soon as it
is created. To learn more about copyrights, see this
Question of the Day.
Other sorts of intellectual-property protection are much
narrower in scope. Trademarks protect designs and
phrases that businesses use to distinguish their product from
other companies' products, and trade
secrets protect proprietary information that must be kept
secret in order for a business to profit (the recipe for
Coca-cola, for example).
Of all of the forms of intellectual-property protection,
patents are the most complex and tightly regulated. Patents
are basically copyrights for inventions, defined by
U.S. patent law as "any new and useful process, machine,
manufacture, or composition of matter, or any new and useful
improvement thereof." Unlike copyrights, patents protect the
idea or design of the invention, rather than the tangible form
of the invention itself. Consequently, patenting something is
a much trickier procedure than copyrighting something. In the
next section, we'll see what standards you have to meet to get
In the last section,
we looked at various types of intellectual-property
protection, including copyrights and trademarks. Patents are
the most complicated type of intellectual property, as well as
the most restrictive. To patent an invention, you have to meet
a number of requirements. First of all, the invention must be
sufficiently novel. That is, it must be substantially
unlike anything that is already patented, has already been on
the market or has been written about in a publication. In
fact, you can't even patent your own invention if it has been
on the market or discussed in publications for more than a
Image courtesy United
States Patent and Trademark Office
An illustration from U.S. patent # 5,375,430,
a 'gravity-powered shoe air-conditioner.' Like many
inventions, this device does not introduce any new
concepts, but instead combines two existing concepts in
an original way. The shoes, patented in 1994 by Israel
Siegel, are powered by the walking motion of the user.
Each time you take a step, your heel works to activate
the air-conditioner compressor and
The vast majority of inventions are actually improvements
on existing technology, not wholly new items. The camcorder,
for example, is essentially a combination of a video camera
and a tape
recorder, but it is a unique idea to combine them into one
unit. It was so innovative, in fact, that when Jerome Lemelson
first submitted the idea to the patent office in 1977, it was
rejected as an absurd notion. When the invention was
eventually patented, it launched a flood of portable video
machines. If you search for the term "camcorder" in the U.S.
Patent Office's database, you will find more than a thousand
separate patents. A modern camcorder is a combination of
hundreds of patented inventions.
Adaptations of earlier inventions can be patented as long
as they are nonobvious, meaning that a person of
standard skill in the area of study wouldn't automatically
come up with the same idea upon examining the existing
invention. For example, you can't patent the concept of making
a toaster that can handle more pieces of bread at once,
because that is only taking an existing invention and making
it bigger. For an invention to be patented, it must be
innovative to the point that it wouldn't be obvious to others.
Another condition for patenting something is that the
invention is "useful." Generally speaking, this means
that the invention serves some purpose and that it actually
works. You couldn't patent a random configuration of gears, for
example, if it didn't do anything in particular. You also
wouldn't be able to patent a time
machine if you couldn't construct a working model.
Unproven ideas generally fall into the realm of science
fiction, and so are protected only by copyright law. The
"useful" clause may also be interpreted as a prohibition
against inventions that can only be used for illegal and/or
All a patent really does is give the patent-holder the
right to stop others from producing, selling or using his or
her invention. For the life of the patent (20 years in the
United States), patent-holders can profit from their
inventions by going into business for themselves or licensing
the use of their invention to other companies. It is up to the
patent-holder to actually enforce the patent; the government
does not go after patent or copyright infringers. To enlist
the government's help in stopping infringement, the
patent-holder must take any infringers to court.
Some inventors, such as the late Jerome Lemelson, have
spent a significant part of their careers battling infringers.
Many large companies have been accused of appropriating
inventors' ideas without compensating them for their work.
Though Lemelson had patented crucial components in some of the
most momentous technology of the 20th century, he spent much
of his life struggling to get by. His critics charged that
most of his ideas were based on projects companies were
already pursuing. Eventually, Lemelson won out, amassing a
substantial fortune late in life. He and his wife Dorothy used
much of this money to assist other struggling inventors. In
1994, they established the Lemelson
Foundation, a philanthropic organization dedicated to
promoting and rewarding American inventors.
While patent law does protect most forms of invention, it
does not apply to all great ideas. In the next section, we'll
see what sort of things can be patented and which cannot.
Can You Patent That?
In patent law, the term
"invention" is defined loosely so that it can encompass a wide
variety of objects. Obviously, if patents have to apply to
things that don't exist yet, then the legal language must be
fairly vague. In addition to standard technological machines
and machine advancements, you can also patent certain computer
programs, industrial processes and unique designs (such as tire or
shoe-tread patterns). While none of the elements in these
creations are new, the inventor may have combined them in a
unique and innovative way. In the language of patent law, this
constitutes an invention.
Some sorts of ideas are considered outside the realm of
patents. No matter how innovative and beneficial they may be,
certain notions are automatically public property the minute
they are uncovered. The most prevalent examples of this are
discoveries in the natural world. Scientists cannot patent
laws of the universe, even though defining those laws may
revolutionize a particular industry or change how we live.
Einstein's Law of Relativity, for example, revolutionized the
world of physics and will be forever linked with the man who
devised it, but it has never been owned by anybody. This
principle existed long before humans did, so, logically, it
cannot be any person's intellectual property.
Scientists cannot patent a newly discovered plant or
animal, either, though they may be able to patent a new plant
or animal that was produced through genetic engineering. This
is similar to the patenting of processes and computer
programs: A genetic engineer didn't create any of the parts,
but the combination of these parts may be novel and
nonobvious, and therefore patentable
In addition to giving proper credit to individual
inventors, patents help out humanity in general. In the next
section, we'll see why patents are so important to a society.
Who Has the Most
Toys?With 1,093 patents to
his name, Thomas Edison (1847-1931) remains the
most prolific inventor in U.S. history. He received his
first patent, for an electrical voting machine, at the
age of 21. In 1876, he set up an invention lab in Menlo
Park, New Jersey, and set a schedule of one small
invention every 10 days and one major invention every
six months. Among many other inventions, Edison is the
father of the light bulb, the phonograph and motion
pictures with sound.
Trailing behind Edison are Jerome Lemelson and Edwin
Land. Jerome Lemelson (1923-1997) held 557
patents, and played a major part in the development of
players, word-processing programs, Walkmans, fax
machines and automated industrial machines, among many
other devices. Edwin Land (1909-1991) held 535
patents in his life, and is best known for his instant-photography
techniques, which are used in Polaroid cameras.
What's the Big Idea?
In the last couple of
sections, we saw that patents grant inventors ownership of
their original ideas, giving them temporary control over who
can use those ideas. This system shows up in some form or
another in most all developed nations, because it is so
important to a country's development. Patents affect society
in a number of a ways, but at their core, they serve a very
basic function: They help encourage the advancement of science
Patents do this in two major ways:
- They give inventors an opportunity to profit from their
creations. The process of inventing a new device or process
is an extremely difficult one, and few people would go
through it if there weren't any financial reward.
- They help disseminate technological information to other
inventors. When you apply for a patent, you are required to
submit a detailed description of your invention. This
description becomes part of the patent office's database,
which is public record. Once the patent has expired, the
idea is more readily available than it would have been if it
had never been patented.
Image courtesy United
States Patent and Trademark Office
Illustration for U.S. patent # 3,150,641, a
dust cover for a dog. In addition to keeping dust off
the dog, the 1964 invention is designed to keep
flea-treatment products on the dog's skin while the
chemicals are working. The patent explains that the dust
cover could also be used to dry the dog after a bath.
You blast a hair dryer into the provided port, and the
hot air circulates all around the dog's
Patents motivate individual inventors, but they also
motivate large companies. They are particularly important to
and pharmaceutical firms. In these markets, your success might
be wholly dependent on having exclusive rights to innovative
products. Intellectual property makes up a huge chunk of these
companies' assets. Currently, IBM leads the pack in the
invention race, boasting more than 2,000 patents in 1999 and
again in 2000 (see sidebar).
When something is invented as part of a person's work for a
company, the company is typically given control over the
invention, though the patent may officially go to the
individual inventor. This arrangement varies depending on the
country and the nature of the employee's contract. If you are
contracted to grant your employer all patent rights to your
work, selling your own invention would actually be infringing
your own patent (and your employer could take you to court).
The same holds for copyrighted "work-for-hire." You may be the
original creator, but if you republish the work yourself, you
are infringing the copyright.
In the next section, we'll find out how an inventor
actually goes about patenting an idea. As we'll see, this is
usually a long, expensive and difficult process.
Picking Up a Patent
Patents and copyrights
are closely connected forms of intellectual-property
protection, but the respective processes of acquiring them
could hardly be more different. As we've seen, any original
work of art is automatically copyrighted as soon as it is put
into some tangible form. To strengthen that protection, the
creator may write a simple copyright notice, which includes
the word "copyright" or the copyright symbol, the
copyright-holder's name and the year of creation. To get a
patent, however, you need to fill out a stack of forms, do
extensive research and, in most cases, hire a lawyer.
Image courtesy United
States Patent and Trademark Office
A motorized ice-cream cone, patented in 1998
by Richard Hartman. The patent (# 5,971,829) describes
the device as 'A novelty amusement eating receptacle for
supporting, rotating and sculpting a portion of ice
cream or similarly malleable food while it is being
consumed.' Even this relatively simple novelty item has
a fairly extensive patent. It includes seven claims and
six drawings, and it cites 15 earlier
Let's say you're a brilliant inventor, and you come up with
an ingenious teleporter,
a device that can move people across the room by scanning
them, replicating them exactly at another point and destroying
the original. To make things simple, let's assume that you
only want to patent your idea in the United States. Once your
prototype is finished, and you've successfully beamed your cat
and a few incredulous family members across the room, the
first thing you need to do is search the United
States Patent and Trademark Office's patent database to
see what similar ideas have been patented. You can do this at
the Patent Search Room in Arlington, Virginia, or online at
Patent Office site.
When you search the database, you come up with two related
machines: a machine that can teleport single quantum particles
and a highly-sensitive medical scanner that analyzes the
1028 atoms that make up the
human body and stores the information in a large database.
Your machine uses a similar scanner to catalog the tiny
particles that make up a person, and replicates these
particles in the same sort of way as the quantum teleporter.
But you have added the crucial element that makes human
teleportation possible: a sophisticated computer system that
can arrange the replicated quantum particles in exactly the
same configuration as the original.
At this point, you know that your invention is new, but you
don't know what the scope of your patent should be. You
haven't invented teleportation, per se, but you have made it
practicable on a grand scale. Confused as to how you should
proceed, you decide to enlist an expert's help. There are two
main types of patent professionals: patent lawyers and
patent agents. Patent lawyers are attorneys with a
science or technical degree who have met the patent office's
qualifications (their professional credentials have been
reviewed and they have passed a qualifying test). Patent
agents are people who have met the patent office's
qualifications but are not recognized as attorneys. Some
inventors work through the patent process themselves (called
working pro se), but most hire a patent lawyer or
patent agent early on in the process.
A patent lawyer performs a number of different tasks for
the inventor. In the next section, we'll see how your lawyer
(let's call her Suzy) would help you patent your teleporter.
Suzy and the Teleporter
Once you have your
brilliant idea, and you've found a good lawyer, things get a
little more complicated and a lot more expensive. The first
thing Suzy wants to do is review your teleportation idea in
minute detail. To proceed efficiently through the patent
process, she needs to understand the machine inside and out
(this is why patent lawyers need a good technical background
in addition to a law degree).
Once she is familiar with your invention, Suzy begins a
thorough patent search of her own to uncover all of the
related ideas that have already been patented. At this point,
Suzy may uncover a patent (or patent application) that you had
not found, and she may tell you that your machine cannot be
patented because it is too similar to the earlier invention.
Or she may suggest that you focus in on one particular aspect
of the invention -- perhaps the device that assembles the
atoms in the correct order. This initial search and
consultation can cost thousands of dollars, but may be worth
the money if it saves you from trying to patent an
unpatentable idea (which would probably end up costing a lot
believes you should proceed, she starts putting the patent
application together. The application is made up of a number
of different parts. It must include:
you hire a patent lawyer, the application will probably be the
biggest expense in the patenting process. Depending on the
nature of your invention, a lawyer might charge anywhere from
$5,000 to $20,000 for his or her services. The application is
also the most important step in the process, since it will
form the basis of your patent.
- A list and description of any "prior art," earlier
inventions that are relevant to your invention. This would
include the quantum teleporter, the body scanner and
anything else that Suzy came up with.
- A brief summary outlining the new invention
- A description of the "preferred embodiment" of the
invention. This is a detailed account of how your idea will
actually be put into practice. Suzy would have an artist
create precise drawings of the machine, explaining point by
point how the machine can transport somebody across the
- One or more "claims." Claims are the most important
element of the application, as they are the actual legal
description of your invention. Down the road, if you need to
take someone to court for infringing on your idea, the
strength of your suit will largely depend on your claims.
The patent lawyer has the necessary training to ensure that
your claims provide the highest legal protection.
Once the draft of your application is complete, Suzy shows
it to you and you work together to correct any errors. Next,
you send the application on to the U.S. Patent Office, along
with several hundred dollars in submission fees. After
submitting the application, the only thing left to do is wait
for it to work its way through a government patent examiner's
stack of work. In this period, you may begin marketing the
teleporter, and you may legally label it "patent pending."
When the examiner finally reviews the application, he or she
may "allow" (approve) the application as it is submitted or
reject the application on the grounds that it is too close to
an earlier invention or that the wording is problematic.
are rejected on first application, and this is not necessarily
the end of the road. The examiner will detail exactly why the
application was rejected, and you and your lawyer may be able
to address these issues by narrowing the focus of the patent.
If you choose to go this route, your attorney writes up an
amendment and submits the application for a second review. At
this point, the examiner might approve the amended
application, reject the application or negotiate with your
lawyer until both sides are happy. Alternatively, you might
decide to give up when you are first rejected, or you might
file a brief charging that the examiner was wrong to reject
Who Received the Most
U.S. Patents in 2000?
- International Business Machine Corporation (IBM) -
- NEC Corporation - 2,020
- Canon Kabushiki Kaisha - 1,890
- Samsung Electronics Co., Ltd. - 1,441
- Lucent Technologies Inc. - 1,411
- Sony Corporation - 1,385
- Micron Technology, Inc. - 1,304
- Toshiba Corporation - 1,232
- Motorola Inc. - 1,196
- Fujitsu Limited - 1,147
examiner is satisfied with your application, you are issued a
"Notice of Allowance." All you have to do at this point is pay
the patent fee (which runs upwards of $645). During the life
of the patent, you have to pay periodic maintenance
fees, which come out to thousands of dollars. But if your
idea is good enough, the reasoning goes, you will make much
more money by licensing your patented idea.
The entire patenting process can take anywhere from a year
to five years. The life of the patent actually begins at the
application date, not the approval date, so few inventors wait
around for final patent approval before selling their
invention. An inventor's claim to an idea is also based on the
application date. Whoever submits an original idea first is
granted the patent. In some cases, two or more inventors
submit the same invention around the same time. When this
happens, the patent office must declare an "interference," a
trial-like proceeding that determines who was the first
inventor. Like a trial case, an interference can be extremely
expensive for both parties.
If your invention is of worldwide interest, you might
consider applying for patents in other countries. Patenting an
idea in the United States only protects you in the United
States. Anybody can profit off your idea in another country if
it is not patented there. If you plan to patent the invention
in other countries, you'll need a patent lawyer with
international patenting experience.
Patenting an invention is no easy task, but it is a
necessary element in the life of an inventor. While the actual
application process and the burden of enforcing a patent can
be brutal and unforgiving, owning your ingenious idea is an
exhilarating experience. To many inventors, this legal
recognition is what makes it all worthwhile.
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