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Patents - The Basics
In the United States, patents stem from Article I, Section 8 of the United States
Constitution. ("The Congress shall have Power … to promote the progress of science
and useful arts, by securing for limited times to authors and inventors the exclusive
right to their respective writings and discoveries.") Currently, patents give
the patent owner the right to exclude others from making or selling the invention
for a period of 20 years from the day of filing of the patent application. Patent
protection is available on similar terms in most countries.
Unlike other intellectual property protection methods, patents protect the essence
of your invention. It is not enough to change a few lines of code to avoid infringing
a patent. The change has to be material to the essence of the way your invention
operates, and a good patent attempts to protect exactly this essence. By patenting,
the protection moves from form to substance.
Patents give the patent owner the right to exclude others from making, selling,
or using the invention. They do not give the right to make or sell the invention.
If, for example, Dan Briklin has patented electronic spreadsheets and you invented
and patented the novel and unobvious idea of recording sets of keystrokes and
playing them back (otherwise known as macros), you will not be able to make and
sell spreadsheets. However, Dan will not be able to sell spreadsheets with macro
capabilities without your permission. The obvious solution in such case is a cross-licensing
agreement between the two of you. Everybody wins, since the product became more
usable, and both of you can benefit from the expanded market. If, however, a large,
well-funded corporation attempts to benefit from the fruit of your labor, it will
have to pay Dan for the spreadsheet and you for the use of the macros.
We, therefore, see increasing use of cross licensing. Corporations cooperate
in order to benefit from better products and increased markets. In some cases,
companies patent inventions they never intend to use, not for excluding others
from making them, but for having negotiation assets in case another company is
asserting a patent against them. This practice is known as defensive patenting.