John Belrose <john.belrose_at_crc.ca> wrote, in response to a question
from Duncan(?):
>...You can patent any idea, provided a previous patent cannot be found....
As John probably knows but (very reasonably) did not take the time and
space to say, the legal requirements for patenting are considerably
more stringent than he wrote. Not only must there be no previous
patent, there also must be no previous printed publication, nor any
offer to sell the invention. In addition, the invention must be the
patent applicant's own. The details are messy. The relevant law in
the United States (for _example_) includes 35 USC sections 101, 102,
103, and 112.
Section 101 states:
101. Inventions patentable
Whoever invents or discovers any new and useful process, machine,
manufacture, or composition of matter, or any new and useful
improvement thereof, may obtain a patent therefor, subject to the
conditions and requirements of this title [35 USC 1 et seq.].
In the context of the Crossed Field Antenna (CFA) a key word in
section 101 is "useful". An invention must be "useful" to be
patentable. If it doesn't work, it isn't useful. No, I don't think
it's enough that the invention enables the inventor to raise lots of
money from investors. See also section 112, below.
Section 102 is about novelty rather than utility; it states:
102. Conditions for patentability; novelty and loss of right to patent
A person shall be entitled to a patent unless --
(a) the invention was known or used by others in this country, or
patented or described in a printed publication in this or a foreign
country, before the invention thereof by the applicant for patent, or
(b) the invention was patented or described in a printed publication
in this or a foreign country or in public use or on sale in this
country, more than one year prior to the date of the application for
patent in the United States , or
(c) he has abandoned the invention , or
(d) the invention was first patented or caused to be patented, or was
the subject of an inventor's certificate, by the applicant or his
legal representatives or assigns in a foreign country prior to the
date of the application for patent in this country on an application
for patent or inventor's certificate filed more than twelve months
before the filing of the application in the United States , or
(e) the invention was described in a patent granted on an application
for patent by another filed in the United States before the invention
thereof by the applicant for patent, or on an international
application by another who has fulfilled the requirements of
paragraphs (1), (2), and (4) of section 371 (c) of this title [35 USC
371(c) (1), (2), (4)] before the invention thereof by the
applicant for patent, or
(f) he did not himself invent the subject matter sought to be
patented, or
(g) before the applicant's invention thereof the invention was made in
this country by another who had not abandoned, suppressed, or
concealed it. In determining priority of invention there shall be
considered not only the respective dates of conception and reduction
to practice of the invention, but also the reasonable diligence of one
who was first to conceive and last to reduce to practice, from a time
prior to conception by the other.
In addition to these requirements, the invention must not be
"obvious". 35 USC 103 provides, among other things:
103. Conditions for patentability; non-obvious subject matter
(a) A patent may not be obtained though the invention is not
identically disclosed or described as set forth in section 102 of this
title [35 USC ss 102 ], if the differences between the subject matter
sought to be patented and the prior art are such that the subject
matter as a whole would have been obvious at the time the invention
was made to a person having ordinary skill in the art to which said
subject matter pertains.... [continues for several paragraphs]
Perhaps _most_ interesting in the context of the Crossed Field Antenna
(CFA) is 35 USC 112, which provides, among other things:
112. Specification
The specification [part of the patent application] shall contain a
written description of the invention, and of the manner and process of
making and using it, 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.... [continues]
The key word here is "enable". If you're a person skilled in the art
of making antennas and you correctly follow the instructions given in
the patent for making a CFA, but it DOESN'T WORK and you can't make it
work by a reasonable amount of experimentation, then the specification
probably wasn't "enabling", so the patent would probably be judged
invalid by a court, _if_ anyone bothered to sue. In egregious cases,
of course, no one bothers to sue. People just ignore the patent, and
it fades into oblivion, except for those "world's stupidest
inventions" stories that you see from time to time.
It is not unusual for an application to get by a Patent Examiner, and
for a patent to be granted, but for the patent subsequently to be
found invalid because, basically, the invention doesn't work. Patent
Examiners are no more omniscient than you or I. Once upon a time in
the U.S., an inventor had to submit a working model to the Patent
Office. No more. However, there's an interesting museum collection
of such models at the U.S. Patent Office near Washington, DC. Worth a
visit if you're in the neighborhood.
I, BTW, am not a lawyer. I don't even play one on TV.
73 -Chuck W1HIS
Received on Tue Jun 15 1999 - 03:31:19 EDT
This archive was generated by hypermail 2.2.0 : Sat Oct 02 2010 - 00:10:39 EDT