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CPSR Journal Vol 20, Number 1
The CPSR Journal
Volume 20, Number 1 Computer Professionals for Social Responsibility Summer 2002

Frequently Asked Questions about Patents
by Wen-Hsin Lin

1. What is the scope of patent protection?

A patent gives the holder the right to prevent others from making, using, selling or offering for sale, or importing within US and its territories what's covered by one or more claims of the patent.

A patent only gives the right to exclude. It does not give the owner the right to use the invention. Obtaining a patent on an improvement does not give the inventor the rights of the earlier patented invention on which he or she made an improvement. The inventor of a new kind of alarm clock will not have the right to use it since a prior patent will block the inventor's use. The inventor has only the right to prevent others from making, using, selling, offering, or importing the subject matter claimed in the patent.

2. What constitutes patent infringement?

Infringement includes making, using, selling, importing into the US, or offering for sale. The use of a patented invention without purchasing it, even if not for the purpose of making money, would constitute infringement. Publishing an article describing something that is within the scope of a patent is not infringement.

3. What can be patented?

Any new and useful process, machine, manufacture, or composition of matter can be patented.

Non-patentable subject matter includes: scientific principles and math discoveries (though methods of using them are patentable), atomic weapons, devices useful only for illegal purposes, business practices, naturally occurring and unaltered substances, and purely mental methods. For example, a method used to calculate tips in restaurants is not patentable, whereas the same method done on a computer would be patentable.

4. Can software be patented?

Yes. The US Supreme Court's 1981 opinion, Diamond v. Diehr, opened the door for computer software patenting. The Court held that use of a mathematical formula and a programmed digital computer does not prevent from being patentable a process involving transformation of uncured synthetic rubber into a different state.

The U.S. Patent and Trademark Office (USPTO), in the Examination Guidelines for Computer-Related Inventions, states that patent protection may be granted for 1) computer programs embodied in tangible media, and 2) sequences of operations executed by a computer, provided that they are new, unobvious, and provide practical benefit in the technological arts.

5. How long does it take to get a patent?

A patent usually takes one to three years to issue after the filing of the application. For special circumstances, an applicant can file a "petition to make special", which can accelerate issuance to twelve to fifteenth months.

6. How long is a patent term?

A patent term is twenty years from the date of filing the application. For applications filed prior to June 8, 1995, the period is seventeen years from the date the patent was granted. After expiration, anyone is free to make use of the claimed invention.

7. How much does a patent cost?

Unless the inventor files the application, there will be two types of costs involved: legal fees paid to attorneys to procure the patent, and the actual fees required by the USPTO.

Legal fees for filing a patent application vary greatly depending on the complexity of the technology. For moderately complex patent applications in the electronics, computer software, and biotechnology industries, fees ranging from $5,000 to $15,000 are not uncommon.1

Endnotes

1D.C. Toedt III, Patent Law Frequently Asked Questions. Lawnotes: Intellectual-Property Law Facts and FAQs. http://www.lawnotes.com/patent/faq_pat.html

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