When I first started building stuff, I just wanted to make things happen and not slow down to think about anything else that might disrupt my flow. Especially not far-away things like patents.
Turns out, though, that patents — and the laws surrounding the things we make — can be pretty important to know about. Especially if you're interested in sharing your creations with the wider world.
So what is a patent anyway?
A patent is a public document that shows how to create and use an invention. The document is checked and published by the government’s patent office. The idea behind the patent system is to encourage inventors to share their work openly, rather than keeping it a secret. This way, others can learn from the invention, benefit from it and improve upon it.
In exchange for publishing the invention, the patent owner gets the right to block others from making, using, selling or importing the invention while the patent is active. Patent rights can last up to 20 years from when they are first filed. After that, they become part of the public domain and free for everyone to use.
Patents only apply in the country that they are granted in. For example, if you get a patent in the United States, it only gives you blocking rights in the United States. To have rights to the invention in another country, you would have to get the same patent in the other country. In other words, unlike with copyright, there is no such thing as an international patent.
But owning a patent doesn't mean you can use the invention
The tricky thing about patents is that they only give the power to STOP people from an invention. Patents do not give anyone the right to actually USE the invention, not even the patent owner!
It's because many inventions have multiple parts that are covered by many different patents. If a person owns one of the patents, but does not have permission to use all the other patents involved, then making the product would still violate others' patents.
For example, take the case where a patent improves upon an earlier invention. Let's say Giant Panda comes up with the idea for an improvement on an existing product and gets a patent on it:
If Red Panda has a patent on part of the original product, then they can prevent Giant Panda from making the invention, even though Giant Panda has a patent on the improved version:
However, Giant Panda can also prevent Red Panda from making the improved version too:
This can lead to the case where no one can use the new invention:
Unfortunately, this is usually what happens. Since patents are by definition rights to exclude others, they typically result in less people using an invention.
In an ideal world, however, requiring permission for every patent in a product should also encourage inventors to work together and share their patents,
So that everyone can benefit.
This is the case with cross licensing, where patent owners allow each other to use patents in exchange for paying each other a fee, called a royalty. Another way to share patents is through a patent pool, which is a bit like a club for patent owners where everyone in the club agrees to let others in the club use their patents. However, even cross licensing and patent pools are methods that are ultimately used to exclude people from inventions.
How is this possible, you ask? Patents themselves are so expensive (easily costing $10,000 or more) and difficult to get that pretty much only those who have enough resources to get a patent in the first place can even qualify to participate in cross licensing or join a patent pool. This problem hits newcomers and small companies the hardest.
Finally, many independent creators decide not to patent at all and just openly share their work so that more people can benefit and innovate on top of their inventions. This is the most open option, but it also leaves inventions potentially vulnerable for others to claim because there is less Prior Art.
So as your projects grow beyond your desk and enter the world, it's important to remember that you're not going to be alone with your creations. Rather, you'll be joining an international community of inventors, makers and entrepreneurs. Part of being able to navigating these communities is understanding how patents do and do not play a role. As with many things, patenting is about tradeoffs and the decision of whether or not to patent is up to you and your situation, goals and values.
Authors: Jie Qi (Berkman Klein Center, MIT Media Lab), Ben Virgin (Suffolk Law School), Carol Lin (Harvard Law School)
Illustrator: May Qi (Brown University)
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