Patent Fallacies

[steve gallant]

The issue of patents seems to have struck somewhat of a raw nerve,
so I submit the following list of common fallacies about patents.
(Warning:  I am not a patent lawyer, so you should consult one before
accepting any of the following as legal gospel.)

1.  You can patent anything not yet patented / not in the public domain.

    A patent must be non-obvious to those "skilled in the art" at the time
    in question.  It is also the responsibility of the applicant to submit
    all known applicable "prior art" regarding the proposed patent.  In other
    words things that most of us know how to do are not properly patentable,
    regardless of whether they are in the "public domain" (a technical term).


2.  Patents prevent free exchange of information.

    Patents are designed to ENCOURAGE free exchange of information.  The 
    basic deal is that if you teach the world something useful, you will
    be given a large amount of control over the usage of your invention
    for a limited time, after which everybody will be able to freely
    use it.  
    
    It is important to consider the alternative to having patents, namely
    trade secrets.  Anybody opposed to patents on principle should be
    able to say why they prefer having the information be a trade secret,
    with no knowledge/access by anybody outside the organization.


3.  Patents hinder research.

    Everybody immediately has knowledge of patented information; trade
    secrets remain secret.  I believe that a recent Supreme Court decision 
    has ruled that patents cannot be used to prevent basic research.(?)


4.  You cannot talk about your invention before filing a patent.

    For US patents, you can file up to 1 year after disclosing your 
    invention.  This rule does not apply to foreign patents, but they are
    so expensive and such a hassle that you should be especially careful
    (and have very deep pockets) before going down that path.  Thus
    you can tell the world about your method, and still have a year
    to file for a US patent.


5.  Patents make money.

    The majority of patents granted do not result in the inventor making
    back legal costs and filing fees.  An application that is not granted
    is a clear loss.


6.  Patents favor big corporations.

    This is a debatable point.  If there were no patent protection, anybody
    who invented something would be giving that invention to whoever wanted
    to use it -- in many cases, only big corporations would profit from this.
    On the other hand, patents give the individual researcher some compensation
    for, and control over, his or her invention.  (This has been very useful
    in my case.)


7.  Software / algorithm (process) patents are different than other patents.

    Another debatable point.  If one can get a patent on mixing chemical A
    with chemical B to make AB, a good fertilizer, how is this different than
    adding number A to number B + <nonobvious operations> to factor number X
    more quickly than had been previously possible?  It is hard to come up with
    an issue that applies to patenting software that does not apply to other
    types of patents.


Of course there are some good arguments against software / algorithm (process)
patents.  It does seem to be true that the patent office is getting over their
heads with a lot of this, and therefore letting things slip through that 
should not be allowed patents.  However, this problem is also not unique to 
software.

The above list reflects dozens of hours of working with patent lawyers,
but the reader is again cautioned that I am not a patent lawyer.  The
first rule you should follow when considering patenting something
is to consult a patent lawyer.  By the way, they tend to be interesting
people, with the challenging job of taking very technical information
in a variety of fields, understanding it, and turning it into 
legal-speak.  (Patent examiners have even more challenging jobs, the most
famous one having been Albert Einstein.)

	Steve Gallant