Can you take something that is found everywhere and patent it for a
specific use? For example, can you patent pens for use as a
backscratcher? If you patent pens for use as a backscatcher, then what
specific pen productions could you stop? Only the ones who package
their product as a backscratcher, correct? And would the production of
their pens have to stop or only their packaging of the product as a
backscratcher have to stop? |
Request for Question Clarification by
pafalafa-ga
on
09 Feb 2006 20:03 PST
For a patent to be valid, it must be for a novel invention, and must
be non-obvious.
Although 'novelty' and 'non-obviousness' are tricky terms of art, and
not easily defined in a common sense way, I suspect the
pen-as-backscratcher may not rise above the threshold for one or both
these things.
In other words, it probably wouldn't be patentable.
Does that help at all?
pafalafa-ga
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Clarification of Question by
centure7-ga
on
14 Feb 2006 17:03 PST
pafalafa, my question is about how patent protection applies to
existing patents that are non-novelty, non-obvious inventions. My
question focuses how the specificness of the patent purpose affects
the way it is enforced.
If Cogs Inc. holds a patent to solve problem A, then Widgets Inc.
comes along and copies their design exactly, then patents the same
exact thing to solve problem B, is their patent valid? If so, then
Widgets Inc. can stop Cogs Inc. from manufacturing the product to
solve problem B. Or, is a patent really completely independent of its
specific stated use?
Another example: In 5,000BC, Cogs Inc. invents the wheel and patents
it. Widgets Inc. starts to manufacturing circular tables and attempts
to patent them. However, Cogs Inc. tries to stop the patent, reasoning
that tables are just stationary wheels. By US patent law, if the
inventions are both considered non-novelty and non-obvious, is their
reasoning valid?
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Request for Question Clarification by
easterangel-ga
on
14 Feb 2006 17:09 PST
Hi centure7-ga!
It seems that a question like this is so subjective that researchers
will be very hard put to present an answer.
Knowing this, what kind of answer would best satisfy your question.
Since this is a legal matter with very contentious consequences, it
will be very hard to say something very definitive about it.
Thanks.
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Clarification of Question by
centure7-ga
on
14 Feb 2006 17:14 PST
I think the question could be rephrased as: Do patents have a specific
utility domain for which they are valid, or do patents cover all
possible uses of the invention regardless of their stated purpose.
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Request for Question Clarification by
pafalafa-ga
on
14 Feb 2006 18:35 PST
centure7-ga,
You seem to be looking for a universal answer, but patent law -- and
law in general -- normally doesn't work that way.
That's why patent cases end up in court in the first place -- the law
is ambiguous, and each side thinks the law in on their side.
Existing inventions are used in new inventions all the time. I might
build a widget with someone's patented screws, circuits, software, and
I can still legitimately claim it as a new invention.
Taking something off-the-shelf and finding a totally new use for it,
however, is a gray area. The Patent Office says:
---
Even if the subject matter sought to be patented is not exactly shown
by the prior art, and involves one or more differences over the most
nearly similar thing already known, a patent may still be refused if
the differences would be obvious. The subject matter sought to be
patented must be sufficiently different from what has been used or
described before that it may be said to be nonobvious to a person
having ordinary skill in the area of technology related to the
invention. For example, the substitution of one color for another, or
changes in size, are ordinarily not patentable.
----
But if you really came up with a non-obvious, very novel use for
something existing, you might be able to make a case for its
patentability. Ultimately, the powers that be would have to decide,
probably through a court case, if the initial application for a patent
is granted.
If you give us a more specific example, we might be able to provide more insight.
paf
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Clarification of Question by
centure7-ga
on
16 Feb 2006 15:12 PST
paf, after reading your comment I now realize that there really is no
clear answer for my question, especially since a provided link (to
About.com) the author is apparently wrong on some points regarding the
domain of the patent. It is disappointing that patent law isn't
consise and clear. It upsets me that a judge can have some semi-random
opinion without any evidence to back it up and issue a punishment
(stop production + fines).
***********************************************************************
That said, I believe my question can still be answered by referring to
three to five cases that were close but the judge ultimately decided
that a patent claim was being violated, and another three to five
close cases where a judge decided that a patent claim was not being
violated. I'll leave it up for the answerer to define "close case".
For each case, please explain the claim so the invention/patent can be
understood. Also summarize how it was being violated.
***********************************************************************
I have increased the price of the question because I expect that more
research would be involved.
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Clarification of Question by
centure7-ga
on
16 Feb 2006 15:17 PST
PS - Regarding what is a "close case": one indicator could be that a
case was appealed and then reversed based on a different opinion of
whether the claim was being violated. That said, I'm sure answerers
may find other cases which were close without the case having been
appealed.
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