IP (and the Founding Fathers)

What is Intellectual Property or IP? As defined by the U.S. Patent and Trademark Office (USPTO), IP is “creative works or ideas embodied in a form that can be shared or enable others to recreate, emulate, or manufacture them.” Preferably, of course, when licensed for profit. IP is categorized generally as either patent, trademark, copyright, or trade secret.

The USPTO grants patents and registers trademarks. The U.S. Copyright Office handles issuance of copyrights. Both offer on-line searching strategies for issued items and collections (and in-person access is still possible). In other words, both offices maintain readily accessible on-line Libraries, Libraries that are of another kind from community public Libraries, but yet also serve the public.

Let’s just address patents, because this is a very big subject, and say a little, too, about trade secrets.

“A U.S. patent gives you, the inventor, the right to ‘exclude others from making, using, offering for sale, or selling’ an invention or ‘importing’ it into the U.S. A plant patent gives you additional rights on the ‘parts’ of plants (e.g., a plant patent on an apple variety would include rights on the apples from the plant variety). What is granted is not the right to make, use, offer for sale, sell or import the invention, but the right to stop others from doing so. If someone infringes on your patent, you may initiate legal action. U.S. patents are effective only within the U.S. and its territories and possessions.”

Issued patents must meet four conditions: “(1) Able to be used (the invention must work and cannot just be a theory); (2) A clear description of how to make and use the invention; (3) New, or ‘novel’ (something not done before); (4) ‘Not obvious,’ as related to a change to something already invented.”

If this sounds like a high barrier, consider that the USPTO receives more than ½ million applications annually these days. Over 11 million have been issued since 1790 when the U.S. Patent Act was embodied constitutionally under George Washington. Washington was expected to sign every issued patent then; he signed more than 150 during his presidency. Obviously, Congress did not expect the number of applications to ever explode as it has.

What does that explosion mean? Have the four conditions been relaxed? Are we so much more creative? Surely relaxed, from my perspective, and obfuscated by adjacent examples of invention without naming the actual one of intended or commercial practice. Maybe even more broadly creative as a nation of entrepreneurs, in the sense that individual inventors and corporations, in numbers unimagined in 1790, vie aggressively in modern times for profitable growth and market share. Patenting what they have protects what has been invested in time and money.

But sometimes corporations do not patent but want to protect anyway. Sometimes the “invention” too clearly fails the patentability tests, but it portends a value-added position. Then is a time to consider keeping the invention under wraps, a trade secret. It may even be valuable to publish some aspects of the invention in the open literature, so as to put them in public domain, and therefore not claimable by anyone.

It is all a complex and serious game, made possible by the USPTO, its IP reference Library, and the wisdom once again of the Founding Fathers. Those Founding Fathers!