What are Patents for?
The most common use of a patent is to secure exclusive rights to manufacture an original product. They provide the best available means of protection since they can potentially give very broad cover, and a product does not have to be an exact copy in order to contravene a patent.
Originally, "letters patent" was a favour granted by the monarch, but with the emergence of engineering the system soon became used to confer an exclusive right, for a limited period, over a new and useful "manner of manufacture". Early engineering patents simply described the whole product which it was desired to protect, but it was soon realised that some way of highlighting the original aspects was required. "Patent engineers" who specialised in writing patents therefore started to add a statement at the end of the document explaining what they wanted to protect, and the "Claims" eventually became the most important part of the whole patent document.
It is not uncommon for patent agents (or patent attorneys as they are now known) to spend more time drafting the Claim than any other part of the document. Drafting a good Claim can only come with practice and experience. Firstly, the patent attorney must understand what his client has produced and decide what is likely to be new about it. Usually, this will involve listening to the client and questioning him/her about what the product does that other products donít, why itís a better solution, whether there are any alternative ways of achieving the same result, etc. It is also useful to know about any similar products that do the same thing, and this is often assessed by carrying out an initial search for similar products described in patent literature or elsewhere.
Because of the vast quantity of technical material that is published every year an initial search usually only gives a snapshot of the current state of the art. However, as the patent examination process progresses the originality of the product should become increasingly clear.
The final wording or the Claims has to be agreed with the Patent Office Examiners. The patent attorney has to steer a difficult course as he/she is usually being pulled is different directions:
As a result, patent drafting and examination often ends up being a lengthy and expensive process. However, the outcome is generally a useful patent that provides strong and legally enforceable protection against someone using the inventors idea. The "scope" of the protection will always depend on a number of factors, the main one being how original the patented item really is. In reality very few patents cover truly earth shattering and highly original ideas, and most patents should realistically be viewed as protecting a particular solution to a problem. However, the patent cannot legally stop people from using an old solution which was already in the public domain, and in many cases a patent cannot extend to different solutions to the same problem, e.g. using technology that simply did not exist at the time the patent was filed.
It is, of course, open to inventors to take out additional patents on new modifications or improvements, or on different ways of solving the same problem, and this is often done.
Many people have criticised the patent system over the years but nobody has come up with an effective alternative. "Cheaper patents" sound great, but somewhere along the line there must some way for inventors to make it clear what they want to protect and for the general public to know with reasonable certainty what they are free to do. Despite its shortcomings the present system usually does a reasonable job.
© Craske & Co., 2008
Last updated: 27 December 2010