Patent Law Misconceptions
Popular Misconceptions About Patent Law
1. Ideas are patentable
The most ingrained misconception about patents concerns the patentability of ideas. However, strictly speaking, ideas are not patentable. Intellectual property lawyers often use the word “idea” as a shorthand substitute for “invention” or 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 is issued or before a patent application is filed, it being sufficient that the patent specification contain a description suitable for a person skilled in the art to understand. it is necessary to reduce it to practice. Although ideas are not patentable, an idea is often the inspiration for an invention. For example, James Watt’s improvement on the steam engine was based on the idea of using a separate chamber to condense steam.
2. An invention must be practiced before being patented
Many people work under the misconception that an invention must at least have been tested before an application can be filed. There is no such requirement, at least not for utility and design inventions. Such inventions need by no means have been proven or actually practiced before a patent covering them is granted. All that is required is that the invention be described in terms that are so complete, clear, concise, and accurate that any person skilled in the art to which it pertains or is most closely related can make and use the invention. .
3. The patent will spontaneously generate money for its owner
Many people’s impression of the economic value of a patent is inflated. A patent is by no means equivalent to an entry into the millionaires’ club. Patent protection is limited in duration, expensive and uncertain. The belief that if you build a better mousetrap, the world will open a path to your doorstep bypasses several very real obstacles in the marketplace and in the courts. A patent is simply a negative right, that is, a patent is not the grant of the right to make or do something, but the grant of the right to prevent others from making or doing something. A patent is not a certificate of merit, but an incentive to disclose. A patent for an invention applies to something for which there is no established market. Consequently, before any income can be earned from the invention, substantial sums must be invested in production and commercialization. In addition, the patent only has value to avoid the diversion of sales to competitors. If demand is low and/or no rival manufacturer appears on the scene, a patent is superfluous.
4. A picture is worth a thousand words
Another misconception about patents is generated by the application of the maxim attributed to Confucius, namely that “a picture is worth a thousand words.” This aphorism, although almost universally applicable, does not hold true for patent claims. In fact, the opposite is much closer to the truth: one word can be worth ten thousand images. In other words, the greater the detail in which the invention is set forth in a claim, the more limited the scope of that claim. In order to infringe a claim, it would be necessary for a physical object to possess all the characteristics requested by the claim.
5. Personal use is not patent infringement
It is mistakenly believed that only commercial exploitation constitutes infringement and that making and using a patented invention for personal use is not a legally actionable wrong. The Patent Act, however, does not contain an express exemption for personal use, but rather states that any unauthorized person who 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 it. In the US the patent goes to the first to invent. Both Canadian and US patents carry the right to exclude everyone else from making, using or selling the invention, as defined by the patent claims. Therefore, it is not a defense to a patent infringement claim that the defendant was unaware of the patent and/or independently invented it. If what the defendant does is infringing, he is liable as the infringer, whether the defendant thought so independently or got the idea from the patent’s teachings.
7. Patent Pending Notice Provides Protection Against Infringement
Perhaps the most common misconceptions about patents relate to the use of the words “patent pending.” Marking items “Patent Pending” indicates that a patent has been applied for and that a patent application is pending with the Patent Office. This serves as a notice to potential competitors that the marked items may not be in the public domain and may be subject to a fledgling right to patent protection. Therefore, by the time an item is marked “patent pending”, the invention to which that mark refers is not patented and may not even be patentable. “Patent pending” properly means simply that a patent application is pending with the Patent Office, not that a patent is currently in force. Therefore, the article to which this language is added is not technically, at the time of marking, subject to a subsisting patent covering the invention to which the marking refers. A “patent pending” notice does not give one any knowledge and therefore cannot be the basis for a determination of willful infringement. To deliberately infringe a patent, the patent must exist and one must have knowledge of it.
Toronto Patent Lawyer