Welcome back to our course on protecting business innovations via patents.
In this video, we're going to summarize where we've been over the past few videos.
What have we covered? And where are we going?
Over the past couple of module's we've talked about what are patents?
What do they do for us?
How do we get a patent?
In the past few sessions,
we've been looking at what does it take to get a patent? What's required?
What are the substance or elements of your patent application.
And then our last set of videos or module of this series and course,
we'll be looking at some interesting case examples,
and some topics that are a little bit more complicated,
but still important, related to patents and protecting your innovations using patents.
Over the past few sessions,
we've looked at the requirements of getting a patent,
and we focused specifically on utility patents.
And it makes sense that utility is one of the essential requirements of a utility patent.
But the first requirement stated in the law is novelty.
It has to be new, and you have to be first,
and you have to be within a year of publication.
You then have to be useful with some specific benefits,
and you have to be non-obvious?
What is non-obvious?
Well that's complicated, and it's not obvious, but we'll get to that.
Novelty is the easiest requirement to understand,
it must be new.
And a reason that this is important,
is the government wants publication.
So what they mean by new is not just that you invented it or created it,
but that it hasn't been published.
Remember the deal that governments have made effectively,
from video from our module one,
that the government is willing to give you a monopoly called a patent,
on your invention, in trade for you publishing.
If you are already published,
they don't have to give you a patent.
You already gave them what they wanted.
And so they can say that's public domain,
and that's what happens.
You publish without patenting,
nobody can ever patent.
Not you, not anybody else.
It's no longer new.
In terms of utility as a matter of policy,
patents are granted only for useful arts.
They're called utility patents for a reason.
They must be useful.
In practice this is easy to do,
but you must clearly state a utility.
You must say why it's useful.
You could have other benefits or uses for your product,
but you must give at least one utility that is useful to the public or to society.
Not just a curiosity or something that is
bound to have some utility for something. That's not going to fly.
Non-obviousness it's the toughest of these three.
Your invention must be smart but it doesn't have to be genius. It's got to be brilliant.
And so it has to be something that the government or a judge would say,
"Wow that's really pretty smart.
That's really a brilliant idea."
It's more than new.
Something can be novel but still obvious.
Oh I haven't seen that done before,
but it's a trivial extension of what we already know.
That's novel, but it's obvious.
This must be more than that.
On the other hand, the courts have also said it could be something that is non-obvious,
even though all the pieces of it are obvious.
You could put something together in a brilliant way
even though the components are all known.
Genius is not required.
This is something the Supreme Court has specifically said in a ruling of the US,
is you don't have to be a genius,
but you do have to be smart.
You do have to be really insightful.
Where that dividing line is, is not obvious.
We can't always tell.
Now the challenge in patenting is to demonstrate non-obviousness.
And this is where most of your effort's going to go.
You need a lot of details,
a lot of analysis of your product or process.
You need a lot of shelling of what's been done in prior patents,
or what exists in state of the art that's not patented,
and why your product is different.
This is where most of your effort in the patenting application is going to be,
and the decisions related to non obviousness are hard.
When we look at the case studies and examples, our conclusion is,
novelty and utility are easy to show.
Non-obviousness is tricky.
And a different judge may be viewing this matter differently than another judge.
It's where there's a lot of uncertainty about patents,
even if you've got a patent,
it might be overturned later in court because of non-obviousness.
Rarely will you get overturned in court for utility or novelty issues.
Almost always when you're in court,
it's because of non-obviousness.
And this is tricky.
And even if you do win your patent,
you still might lose to competition because
your monopoly gets beaten because someone finds a way around your patent.
This is why the best patents are the smallest patents.
Make your patent tiny.
Make lots of patents on your idea.
Patent as close to the function or element of your invention as you can.
It's closer to an idea,
and that makes it hard to get your patent.
But if you do get it,
you got a better lawsuit when you file against the competition.
You've got stronger protection.
And that's why Apple has over 2,000 patents as related to their iPhone,
because that makes it really hard to find a way around.
There's 2,000 reasons they can sue you if you violate their patents,
if you copy their products.
So lots of basis for litigation.
But if you have only one patent on a fairly broad big product,
people can find a way around it. Thank you.
Theodore Henry King CLARKAssociate Professor
