Popular Patent Law Misconceptions
1. Ideas are Patentable
The deepest rooted misconception about patents pertains to the patentability of ideas. Strictly speaking, however, ideas are not patentable. Intellectual property lawyers often employ the word “idea” as a shorthand substitute for “invention” or for the physical embodiment of an idea. Perhaps this is so because there is no requirement that an invention be reduced to actual practice before the patent issues or before a patent application is filed, it being sufficient that the patent specification contain a description adequate to enable one skilled in the art to which it pertains to reduce it to practice. While ideas are not patentable, an idea is often the inspiration for an invention. For example, James Watt’s improvement of the steam engine was built around the idea of employing a separate chamber to condense the steam.
2. An Invention Must be Practiced Before it is Patented
Many individuals labour under the misconception that an invention need at least have been tried before an application could be filed. There is no such requirement, at least not for utility and design inventions. Such inventions need not in any way have been tried or actually practiced before a patent covering the same is granted. All that is required is that the invention be described in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same.
3. Patent will Spontaneously Generate Money for its Owner
Many individuals’ impression of the economic worth of a patent is inflated. A patent is by no means tantamount to a ticket to the millionaires’ club. Patent protection is limited in duration, costly, and uncertain. The belief that if one builds a better mousetrap the world will beat a path to one’s door overlooks several very real obstacles in the marketplace and in the courts. A patent is merely a negative right, that is, a patent is not the grant of the right to make or do anything, but rather the grant of the right to prevent others from making or doing something. A patent is not a certificate of merit, but rather an incentive to disclose. A patent for an invention applies to something for which there is no established market. Accordingly, before any income can be realized from the invention, substantial sums have to be invested in production and marketing. Moreover, the patent only has value in preventing a diversion of sales to competitors. If demand is meager and/or no rival manufacturer appears on the scene, a patent is superfluous.
4. One Picture is worth a Thousand Words
Another misconception about patents is generated by the application of the maxim which is attributed to Confucius, namely, that “one picture is worth a thousand words. ” This aphorism, while of almost universal application, is not valid for patent claims. In fact, the inverse approaches much nearer to the truth: One word may be worth ten thousand pictures. In other words, the greater the detail with which the invention is set forth in a claim, the narrower is the scope of that claim. To infringe a claim it would be necessary for a physical object to possess all the features called for by the claim.
5. Personal Use is not Infringement of a Patent
It is erroneously believed that only commercial exploitation constitutes infringement and that making and using a patented invention for one’s own personal use does not constitute a legally actionable wrong. The Patent Act, however, contains no express exemption for personal use, but rather declares that whoever without authority makes, uses, offers to sell, sells within Canada, or imports into Canada any patented invention within Canada during the term of the patent therefore, infringes the patent.
6. Independent Invention is not Infringement of a Patent
In Canada, the patent goes to the first to file. In the U. S. the patent goes to the first to invent. Both Canadian and U. S. patents carry with them the right to exclude all others from making, using, or selling the invention as defined by the claim(s) of the patent. Therefore, it is not a defence to a law suit for patent infringement that the accused was not aware of the patent and/or that he invented it independently. If what the accused does infringes, he is liable as an infringer, whether the accused thought it up independently or got the idea from the teachings of the patent.
7. Patent Pending Notice Provides Protection Against Infringement
Perhaps the most widely held misconceptions about patents relate to the use of the words “patent pending”. Marking articles “patent pending” indicates that a patent has been applied for and that a patent application is pending before the Patent Office. This serves as notice to would be competitors that the marked articles may not be in the public domain and may be subject to an inchoate right to patent protection. Thus at the point in time when an article is stamped “patent pending” the invention to which that marking refers is unpatented and perhaps even unpatentable. “Patent pending” properly signifies merely that a patent application is pending before the Patent Office, not that a patent is then in force. Therefore, the article to which this language is affixed is technically not, at the time of its marking, subject to a subsisting patent covering the invention to which the marking refers. A “patent pending” notice gives one no knowledge whatsoever and so cannot be the basis for a finding of willful infringement. To willfully infringe a patent, the patent must exist and one must have knowledge of it.