SYSK Selects: How Patents Work

What was originally designed to encourage innovation by rewarding the people who create technological advances, the U.S. patent system has become a big mess. Wade into this surprisingly interesting mire to learn how to save this important institution.

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Episode Transcript

Speaker 1 (00:00):
Hey, everybody, it's your old pal me Josh, and I
am here to bring you today's s Y s K
Selects episode called How Patents Work. It sounds like it
will make your eyes bleed out of boredom, but do
not get it wrong. It's actually one of our most
interesting episodes ever. And it is seriously, sincerely, honestly everything

(00:23):
you could ever possibly want to know about patents. And
I would guess that we've never said the word patent
more than we do in this episode, So enjoy it.
It's from November of two thousand fourteen. Take a little
time to learn about patents. Welcome to Stuff you Should

(00:46):
Know from House Stuff Works dot com. Hey, and welcome
to the podcast. I'm Josh Clark. There's Charles W. Chuck Bryant,
and and this is stuff you should know. There's Jerry too.
By the way, Jerry, he's ready for January. Me, uh, yeah,

(01:12):
you're ready for a new year. I'm ready for this
year to be done. Yeah. I think it's been kind
of cool year. No, it's been fun. I'm just I'm tired.
I feel i'd be much more rested in it's October.
You know, you've got a little ways to go, I know,
and this is my favorite month too. I'm just kind
of a drag so tired, you hippie, you're gonna start

(01:35):
saying far out next starting to it is far out,
so Chuck, Yes, I'm very curious. Do you have any
patents to your name? Now? Man, I'm not. I don't
have an inventive mind. I don't either. My brother does,
and he has had some good ideas that have later
been made into inventions. Why didn't he patent him? I
don't know. Man. Every every time I see a new one,

(01:58):
I sent it to him, say hey, I remember when
he had this idea twelve years ago, Scott, Yeah, what
are you doing? You know? Well, he's got a bunch
of pinball tables, so he's doing all right. He doesn't
own the patent on them though, Um no, but he could,
you know why, because it's America, that's right. So it
turns out, Chuck um and doing a little bit of research,

(02:21):
that there's mention of patents and patent protection in the Constitution,
not even the Bill of Rights. Freedom of speech isn't
even mentioned in the constitutions in the Bill of Rights,
but patent protection is in the Constitution Article one Section eight,
Clause eight, which is known as the Intellectual Property Clause,
and it says, quote, Congress shall have the power ellipse

(02:43):
to promote the progress of science and useful arts by securing,
for limited times to authors and inventors the exclusive right
to their respective writings and discoveries. And since this is
the late eighteenth century, a lot of that stuff was
just like randomly capitalized, like a sixth grader wrote it
something right, And my apologies to all of you six
great listeners out there who know your capitalization, like we

(03:05):
love proper now. So um, it's in the constitution. Like,
if you invent something that's new and novel and cool,
we think you should have some sort of government sanctioned
monopoly over that, at least for a limited amount of time.
You know why Why because very early on the United

(03:25):
States said we want to encourage uh inventiveness and forward thinking,
an entrepreneurship and great ideas. They were on board pretty early.
Even though it's a sort of a mess these days,
which we'll talk about against the end, yea, we will, yeah,
but yeah, the whole point, the whole purpose of a
patent system, and apparently every it's one of the hallmarks

(03:48):
of the m of the modern society, I guess, is
to have a patent office. It says we value innovation,
we value technological progress, artistic progress, um. And we're going
to show a commitment to that by by basically saying

(04:11):
you you have again, I guess the best way to
put it as a monopoly on your invention for a
limited amount of time. And it hearkens back. Um. Apparently
the first patent was issued in fourteen forty nine in
jolly old England by King Henry the sixth, who gave
it to a guy who didn't even have a last name. Well, yeah,

(04:34):
sure of Utnam is not a last name. That's where
you're from. Sounds like I'm Josh of Toledo. I'm just
saying this medieval is not the sixteenth century. Uh No,
it's not so. John of Unham got a patent from
King Henry the sixth for stained glass manufacturing. Yeah, back

(04:55):
then patents in England were it was a little bit different.
It was more like, Hey, we want to protect the
crown and our country and our good friends and are
good good friends of the crown, and um make sure
that if they have an idea that we can go
after anyone else in any other country, even if it's
something like stained glass that's already clearly being done in

(05:17):
places like Italy. Right. It was basically like, you know, officially,
are the only person who can make stained glass. It
was a bit of a sham. Yeah, they would. They
would give out patents not just on an item or
an idea or an invention, but like a whole industry.
So like this, somebody held the patent on the publishing
industry for a while and apparently got out of hand

(05:38):
because it was just royal prerogative left and right. And yeah,
it didn't last that long though. By the six four
they started to pass statutes and laws to try and
curb that abuse of power. Um, anyway they could and
make it a little more like the patent system that
we know and support today. Yeah, they were like, the
Crown can't give out patents unless it's for new invention. Yeah.

(06:01):
So yeah, that that is very similar to what we
have today. Um. So right off the bat, America's like
new country. We're setting up a patent office. Um. And
the first person to get a patent in the United
States was one Samuel Hopkins. Hopkins is the last name
not Samuel of Pittsburgh, Samuel Hopkins. Yeah, he got a

(06:25):
patent for UM an improvement in making in the making
of potash. Is that potash or potash? I don't know.
I said it eight different ways in my head earlier.
Well one of those is right, yes, um. And so
he held the first patent. Actually, the person that reviewed
his patent was a man named Thomas Jefferson. Yeah. He

(06:45):
was big on innovation, as was Lincoln, and Lincoln is
the only president to actually hold a patent. UM. He
got a boat stuck one time in the river and said, hey,
that'd be neat if we could find a way to
not get boats stuck, right, So he devised the system
to unstick boats when they were stuck on a sandbar
for the river was too shallow or something. Yeah, by

(07:06):
inflating some booie's that would just basically let you float over.
And they were like, President Lincoln, that's a great idea,
here's your patents. Well he was a congressman at the time,
but yeah, he's the only president to hold a patent. Uh.
And then Jefferson handled the application process for a while
before passing it off to UM. You know, other cabinet members.
And then eventually they're like, you know what, we this
is all out of hand. We need to establish our

(07:27):
own patent office and did so an eighteen o two. Yeah.
I think they grossly underestimated the number of patent applications
they were going to receive. People got their invention on. Yeah,
the first patent um that Samuel Hopkins received, Um Jefferson examined,
he signed it, he gave it to the Secretary of War,
who signed it, who then pass it under the Attorney

(07:48):
General who signed it. And then President George Washington signed it.
So that wasn't a sustainable process. And then chuck, there's
like tons of millions of patents. I think like five
point seven million patent tons of millions in them. Yeah,
five point seven is a ton um. Anyway, there was
this notable one that I think is kind of hilarious.
Mark Twain, beloved American humorist. He invented. Who didn't like

(08:13):
Mark Twain, Man, there's a lot of twin haters. Well,
he invented the elastic brass strap. Yeah, uh, I wonder
why he he invented and improve it an adjustable and
detachable straps for garments, which he suggested could use for
pantaloons or vests or other garments. But basically, if you
look at it, you're like, that's a brass strap. Yeah.

(08:36):
I bet that the old soft garter benefited from that idea,
I would guess so. And then one other things I wondered. Yeah,
he also held two other patents, one for um a game. Hey,
he invented a game to help players remember important historical dates. Okay,
I don't think he ever saw a dime on that one,
I'm sure. And then a self pasting scrap book, which

(08:59):
wouldn't be come huge until the nineties. Yeah. Self pasting
means I don't know, it's already sticky. Yeah, like the
photo albums you peel back the plastic and that that
sheet underneath is sticky uses static electricity. No, it's actually
sticky too, didn't it. I think it's static. It's sticky.

(09:22):
I think it's sticky. I haven't looked at a photo
of a minute. What, well, I have to I have
to go to uh, I don't know, the Hallmark store
and check on out soon. Let's do it. Well, we
were going anyway, so so I know the new Christmas
tournaments are uh so Chuck, let's talk patents, man. Yeah,
this I had this idea because I'm a big fan

(09:42):
of Shark Tank, the TV show, and there's a lot
of patent talk, and uh, I was watching it the
other day and they says, well, we have the utility patent,
but not the design patent. And I was like, I
gotta look this stuff up and see what all that means.
And um, well, we'll get to that in a second,
but let's start it out and we'll probably do shows
on maybe copyright and trademark at some point. Maybe they're

(10:06):
still they're worth mentioning here though. Yeah. Copyright, those are
all forms of intellectual protecting your intellectual property, and copyright
is the easiest and most broad and wide reaching and
longest lasting form because you can just write something and
it's yours automatically in the United States at least. Yeah,

(10:27):
and it lasts um for your lifetime plus seventy years.
Not bad, no, um, and literally once you, like Chuck,
if you write a short little story, you can write.
When you finish, you can write see put a circle
around it, Chuck Bryant, two thousand fourteen, and you have

(10:48):
your official copyright. That's right, Like that's it. Legally, you're
you're done just because you created a work of authorship.
And that's pretty great if you're a company and you've
done have a copyright as a company at last um
up to a hundred and twenty years, depending on whether
they publish it or not. Um. Yes, but that's uh.

(11:12):
Eventually it does run out, and then it can be
shared and other people can make money off of it,
like for example, old um HP Lovecraft stories. Like you
or I could take a bunch of love Craft stories
um and say we wrote them, type them, put them together,
and publish them and sell those books. Really like a
collection that you don't have to get any kind of

(11:32):
permission for that. Nope, it's in the public domain at
that pointlong to the world. That's right. Well, we read
every Halloween. We have to read something from the public domain,
I know, because it's really expensive to do otherwise it is.
Trademarks are a little bit different. They're a lot more
narrow and what they protect, and they protect designs and

(11:52):
phrases that businesses use or maybe trade secrets like a
formula for a soda are different. That's its own thing. Yeah,
but that's still a trademark. Is it. Yeah, I thought
it was separate from a trademark. M. I don't think so.
So with a trade says it's a trademark trade secret. Well,
with a trade secret, um, it's actually. Uh, it can

(12:14):
be beneficial to keep something under wraps as a trade
secret because if you have something that you patent, you're
protected for twenty years in the United States, your patent
is but part of the patent processes we'll talk about
is to publish it. You make it every detail of
it public. So then after twenty years, when your patent
runs out, anybody can go and look at your patent

(12:35):
and recreate it and not give you a cent for it.
If it's a trade secret, as long as no one
discovers the the say secret formula for Coke by accident
or by being this American Life and rooting it out
right and uh and then yes, so like Coke could
sue This American Life for damages. But once it's out

(12:56):
in the public, like, that's no longer a trade seek
and other people can use it legally. Uh. The other
way you can do it is to take coke and
reverse engineer it and come up with the formula successfully.
That way that's not protected by trade secrets. But then, uh,
I think Coke diffused that well though they were kind
of like great, good luck. Yeah, supposedly they keep it

(13:18):
in a bank in a bank vault here in Atlanta, Yeah,
like you. Um. And then the last one is a
service mark, which is like a trademark for a company
that provides services rather than products. So like if you're
a plumber, you might have sm next to your your logo.

(13:39):
Those are the different types of intellectual property protection protections
afforded in the United States, Chuck. But the final one,
and the one we're discussing in that length is the patent,
and that is a copyright for an invention, and the
US patent law, uh defines that as quote any new
and useful process, machine manufacturer, or composition of matter, or

(14:00):
any new idea and useful improvement thereof end quote. And
that is uh, well, we'll get into all that, but
the wording there is sufficiently vague and specific, because when
you're talking about inventions, it's got to be a little
bit vague, Yeah, because you don't have it all worked out.
Maybe no, because with the copyright, for example, what you

(14:22):
wrote down is is protected, right, the sentence structure, the
paragraphs who use the wording you used. That's protected, the
thoughts that it's getting across about the little puppy who
got lost and came back home and everything ended really well,
like you, you're the idea of a puppy getting lost
can't be copyrighted with a patent. It's the reverse, like

(14:45):
the actual invention, like the platform shoe with the goldfish
tank and the heel that you invented, right the you
can't defend that actual tangible shoe, but the idea, the
design of that shoe, that's what a patent protects. Yeah,
and you can't steal It gets a little tricky with

(15:07):
things like writing or like movie ideas. You can't steal
someone's idea. Um, Like, there could be two movies about
lost puppies. But if you could somehow prove that you
met someone in a meeting and pitched him this idea
for the lost puppy, and then six months later they
came out with a script for a lost puppy, you
might have a case that they I don't know, man um,

(15:28):
it happens all the time. Okay, but think about deep
impact and armageddon. Let's go back to that. Well, well,
now I know that's what I'm saying. You can have
two movies. There their lawsuits every day filed on Hollywood
over stolen intellectual ideas. But um, whether or not successful
is whether or not you can make your case. You know,
it depends upon each one. That's a good point. So

(15:50):
the first thing if you want to pattent an invention
is that you have to uh well, it has to
be sufficiently novel, is what they say. So it can't
be uh uh. I mean it can be similar to
other things, but it has to be different enough to
something that's already patented or been published in a publication
to grant the patent. Yeah, because if this that's a

(16:11):
really key point. If if the even if you invented
something right, Um, and let's say you wrote about your
platform shoe with the goldfish tank in the heel, right,
if you wrote about it and don't file a patent
application if it was published, yes, within a year, Um,
you you can't file a patent after that. Yeah, that's

(16:33):
why the first thing you need to do is file
the patent. Like, no one invents something and writes all
about it in the Washington Post for a year and
it's just maybe I should patent it so that that's
your first step. And so that's and that's that's what
makes a novel. It's new. It's a different idea. And
like you said, you can be taking different things that
already exist but putting them together in a new way

(16:55):
that people hadn't thought of or that wasn't what's called
um obvious. So the the invention also has to be
non obvious. Yeah, and that's what most inventions these days
are our improvements on things that already exists. Like there
are new inventions, but a lot of it. Like the
great example they use in nineteen seventy seven when Jerome

(17:15):
Lemelson invented or got patented the idea of the cam quarter.
It was so absurd at the time. People were like,
you hit recorded video and sound at the same time.
Just that's denied. That's just silly, get out of here.
And he said, actually, you know, that's kind of a
good idea, and it's super easy to do because all
I have to do is tape the tape recorder to

(17:36):
this camera, which is probably what he did. And uh,
he was able to get the cam quarter patented, of course.
And now if you go to the patent office and
do some research. There probably thousands of patents that have
to do with the cam quarter. Each individual little piece
that someone innovates, they can patent, like night vision on

(17:57):
it or a light attached to it, right exactly. But
you couldn't say, I'm gonna patent a cam quord this
other guy's cam quorder idea, but it'll be green because
that's an obvious change. Or this article gives the example
of like a toaster, Like you couldn't patent a toaster
that has an extra two slots for bread because anybody

(18:18):
could think of that exactly. It's that's obvious, that's non obvious,
that's just a bigger toaster. And then there's also useful
um useful as kind of the last of the triumvirate
for what makes a patentable item or invention, and like
it has to be something that works. So like the
example given in this article is like you couldn't patent

(18:39):
random configuration of gears because it doesn't do anything, it
doesn't work, it's not useful. But if those gears transported, uh,
you know, it's a new way of transporting something from
one place to another more efficiently. Maybe than you could patentable,
patentable um. And then in the same vein, something that
apparently the patent office interprets something that can be used

(19:03):
strictly for immoral purposes, that they consider that non useful
because at the end of the day, the patent office
is supposed to be doing this for the benefit of society.
So I guess they feel that they also can morally
interpret things as well. Yeah, what is that? Like, you
can't patent like a whiskey still like in your bedroom.
I don't know, I know, I wouldn't. I think it'd

(19:24):
be more harmful than that, Like like maybe, um, a
doomsday laser that only works on children who haven't done
anything to anybody, But the doomsday laser for bad kids
is great. You see my point? Patentable That was a
great example if you ask me. And then similarly, your

(19:45):
device has to be able to be to not just work.
Like yes, you could say, well, this random configuration of
gears will work. Why can't I patent it because it's
not useful. In the same vein, you can't patent uh,
like a time machine. Again, the example they give this
this article is lousy with great examples. Yeah, like we

(20:06):
We tried, actually to get our way Back Machine patented,
and they said, guys, that's real cute. They're like, that's
basically just sound design. Thanks for wasting your time. We
could probably trademark it, though, although I'm sure the good
people who made Rocky and bowl Winkle would sewer. Yeah,
r see us, Yeah, see ourselves. The patent in the
United States. And I apologize that this is not patents

(20:29):
all around the world, but we don't have like eighty
hours because we search each country. Again, any any modern
developed country typically has a patent system. Yeah, and good advice.
If you have something that you think could be used internationally,
you need to get patents in all the countries you
fear might rip it off, right, because you're your patent

(20:51):
that you've received in the United States protects you in
the United States, not Canada, not Japan, not Mexico, not China,
not anywhere for twenty years, right these days, that's all
long your patent will last. That's right, Chuck. Um. It
used to be seventeen and I can't remember when they
changed it, but it wasn't too terribly long ago, within
the last couple of decades, I think. Yeah, And actually, um, well,

(21:13):
we'll go over the types of the patent real quick too,
because one of those, the design patent is only for
fourteen years unless that's changed design patent. You'll hear that
on Shark Tank all the time. Uh. That is something
like if you designed a new chair, like an ikea chair,
that would be design patented. You can't go and rip

(21:33):
off that chair. Oh, but the the idea of a
chair itself isn't patentable. It's just this configuration of the
chair concept, right. Or Steve Madden will design a shoe
and Steve Madden can put a design patent on that
shoe even though it's a shoe. You can even patent
the sole of a shoe if it's some innovative new
tread tread or for like a tire that channels water

(21:55):
away or something like that. Exactly. Um, I don't think
those are design patents though. I think that would be
a utility patent. But design patents are enforced for fourteen years.
Utility patent um that is, there are five categories there.
It can be a process, a machine, a manufacturer, a
composition of matter, or an improvement on an existing idea,

(22:19):
and it might fall into a certain category, like more
than one, but it'll only be patented for one of
those categories. But it's covered and that lasts for twenty years.
So basically you're like the coffee maker that also makes
an egg and toast at the same time. That would
have gotten a utility pattern, right, uh yeah, does that exist? Yeah? Nice?

(22:43):
Emily said. The best egg she ever had was it
a cafe in Utah where they um cook them using
a like what she used to heat the milk like
that sprays out the steam. They were steam cooked. Weird. Yeah,
like to make an espresso, they will put the egg
like as if you would make an espresso and cook
the eggs with that steam. I've never heard of that.

(23:04):
I've never heard that either. Um. And then there's the
super Weird Plant patent, and that is granted for any
a sexually or sexually reproducible plant or flour that is
novel and not obvious. Yeah, that's that's kind of a
big one because there was and in Australia it's this
is the way it is. But in the US it

(23:25):
was up in the air for a little bit that
people were worried that like naturally occurring genetic sequences could
be patented, so we're basically some company could be like, hey,
we now own your genes and you can't do anything
with them, even to save your own life unless you
pay us. In in Australia, they're one of their federal

(23:46):
courts said yeah, like, we're totally down with that, which
is crazy. In the United States, I think in two
thousand and fourteen, the Supreme Court said, yeah, we're not
doing that. You you can patent um if you can
figure out how to manipulate jens to make them do
something that doesn't naturally occur, knock yourself out, totally patent that,

(24:08):
like for example, mont Satto's seeds that um that prevent
themselves from receding or creating more seeds. Yeah, or some
new strain of tree that's hardy against what some kind
of insect. You can patent that, right, But you can't
just go out and patent an oak tree or a
human gene. No, you can in Australia, which should not

(24:32):
be allowed to do. But in the US you can't
do that. And that was a big load off off.
I think a lot of people's minds, including mine. Uh, well,
that's good. I'm glad you can sleep then I am
feeling great. Plant patents are good for twenty years as well.
So I don't know why I design pats are only fourteen,
but you know, maybe they just want to encourage more
to Nobody values design like they should. That's the problem. Uh.

(24:54):
As far as we mentioned Jerome Lemelson, and as far
as inventors go, he ranks second to Thomas Edison a
number of patents in US history, not necessarily a number
of inventions, though a lot of people would point out, yeah,
he's a pretty controversial guy. Some people see him as
a philanthropic genius. I'm talking about Edison, I was talking

(25:15):
about Lemelson. Yeah he is. He's controversial himself too, Yeah,
because he um has accused a lot of people of
creating what's called submarine patents, which are it's basically a
patent that you sit on even and knowing that there's
something just like that being developed, and you don't let
anyone know, and you just hope it doesn't get their attention,

(25:36):
and then later on when it's huge, you come out
and say, hey, you owe me a ton of money
because I have this seventeen year old patent. Yeah. Now
this this Lemilson is basically what you're talking about is
a form of patent trolling. That's right, and that's he
does definitely stand accused of that, or we should say
his foundation stands accused of that. Um But Samuel Lemonson

(25:57):
had was um in country vertibally a genius inventor who
definitely did come up with a lot of really great ideas,
things like the cam quarter, things like bar code scanning,
like just like basically the modern world, a lot of
it came out of Lemilson's head, Jerry Lemilson's head. Right,

(26:19):
But you are right. His foundation has racked up like
a billion dollars in licensing fees and court awards from
these kind of these kind of lawsuits and litigations until
they ran up against one where it was like I
think a bar code scanning case, a couple of them
got put together and then they were added onto like

(26:39):
seven others, and the judge in the case found that
basically this even though there isn't necessarily statute of limitations,
a reasonable statute of limitations had run out on the
time between when barcode scanners came out and the time
they filed the lawsuits. And they used the term submer

(27:00):
marine patents in this article and said time's basically run out.
These things belong to the world now, and you know, sorry, lol,
Wilson Foundation, you're not gonna get this money. Interesting. There
was something past called TRIPS Agreement, Agreement on Trade Related
Aspects of Intellectual Property Rights, and that was supposed to

(27:23):
kind of curb submarine patents, but they'll still pop up
every now and then. I think I think TiVo reared
their head. I think I saw something about that. I
know the details though, with a submarine patent saying hey,
everyone with a Comcast DVR, we actually invented that whole technology.
Oh yeah, yeah, I'm not sure how that all panned

(27:44):
out though, I didn't get to look into it any further.
But it's interesting. Well let's keep at it, but we'll
start again right after these messages. Okay, So Chuck, Yeah,

(28:05):
do you want to talk about Edison? So yeah, I
said lem Jerome Lemelson was number two with five hundred
and fifty seven patents held in the US, but Edison
eclipses that with one thousand, ninety three patents. Uh. And
he had a set up in Menlo Park, New Jersey
that was just like a the idea factory basically, which

(28:26):
ironically is unrelated to the Menlo Park US Patent and
Trade Office out in California. Oh really, Yeah, it was
just coincidentally named from what I understand. Interesting, Uh, I
never do that connection. Um. He when he set up
the Menlo Park, he hired a bunch of like really
bright people and said, let's come up with one small

(28:47):
invention every ten days, one major invention every six months,
and I'll put my name on all of them exactly.
And if if the your hackles are raised right now,
go back and listen to our Nicola Tesla episode, which
is a good one. Edison was a smart guy in
many ways. He was quite a good promoter. Like the
light bulb. He's frequently credited with inventing the light bulb.

(29:10):
A lot of purests will point out, like, no, he
didn't really invent the light bulb. He took a lot
of other innovations that were incandescent light related and he
figured out how to put them together into what we
understand now is the light bulb. Well, yeah, but that's
an invention. Yeah, he went and got the patent, and
now everybody says Edison invented the light bulb because uh

(29:31):
and I like that too, because you know, that's the
kind of the whole point of patents is this stuff
is available to the public to look up. And that
was one of the original reasons they made it public,
is so people could look up other people's ideas and
build upon that, right. You know, that's one that's one
mark in the favor of patent offices in the patent

(29:52):
system in general, is that it's a way to disseminate
scientific information and encourage growth and uh, you know, inventiveness, right,
And the with the way it does that is by
offering an incentive for inventors to invent, because that can
be a very long, arduous, heartbreaking experience inventing. And if
you're gonna do that and go to all the work

(30:12):
of research and development and then right when you come
up with it, somebody can just come along and mass
produce it, then you're you're not gonna have any incentive
to invent anything. You're just gonna go off and like
work on a road crew or something instead, because it's
probably a lot more satisfying at the end of the day. Yeah,
and you can't just go to the government and say, hey,

(30:33):
they you need to look into this guy. They stole
my idea that I have patented. The government would be like,
I don't care. Well, they may care, that's a little callous,
but they say that's not our job. You can go
and take someone to court if you want to challenge this.
But there's no government agency that like patrols the patents infringements. No,

(30:53):
it's up to the patent holder to to monitor and
police their own patents, which they are big. So let's
talk about the courts a little bit. Um. It's like
twenty years ago, if you had held a patent and
you took someone to court for infringement, the courts typically
sided with the infringer. There was a I guess kind

(31:15):
of either a thought that you are stifling innovation if
you're just kind of suing people over patent infringement, you know,
or else they just didn't view patents like they do today. Nowadays,
it's going to the other extreme, where the court's rule
in favor of the patent holders so frequently that a

(31:35):
cottage industry of what are known as patent trolls sprang up,
where you have groups of people or companies or individuals
who just go around either applying for patents that are
really abstract and really shouldn't have been approved, very vaguely written, right. Uh,
and they're typically software related to because I think there's

(31:57):
a sentiment that the the U. S. Patent Office it
doesn't fully grasp software and the Internet and I T
and that kind of stuff. Um. So you either going
and file for and get a patent on something really
overly broad and vague, or you buy a bunch of
other people's patents and you just start for the whole

(32:20):
purpose of going to people and saying you're infringing on
these patents that I now own, give me some money.
I'm gonna take you to court. It's a business unto itself,
it is. Um. The problem is because the courts moved
so far in favor of patent holders that people would
sell settle out of court to avoid litigation. And so
as a result, this this whole cottage industry came up.

(32:41):
And then recently there's been some steps taken to kind
of reform that a little bit. There was something called
the Innovation Act. The Innovation Act past the House was
sent to the Senate, it was in the Senate Judiciary Committee,
and then Senator Patrick Lahey killed it, and the tech
community who's really big into patent reforms, um accused him

(33:03):
of being in the pocket of the pharmaceutical companies that
would never happen in this country, who are really big
into preserving the status quo. And if you really look
at what's going on with patent reform today in this argument, Chuck,
you've got the pharmaceutical companies versus the tech industry. Tech
industry is like things are moving so fast and there's

(33:24):
so many ideas coming out that we don't like. We
can't focus on patent infringement. It shouldn't be as big
of a deal because it's stifling innovation. There's people here
that are scaring people from, you know, licensing computer software
because this guy says that he has a patent that
um you could says you could put software onto a

(33:45):
CD rom and and and sell it that you know,
that's the kind of patentrol thing. On the other side,
the pharmaceutical companies say, hey, man, we make tons of
money licensing our patents, and so if we are afraid
of infringing on patents because they can get sued, then
our investments are portfolio. Patents are going to be protected.

(34:07):
So there's these huge behemoth lobbies like hammering it out
right now in in the halls of Congress, and it
seems like the Supreme Court in the federal government are
siding on the tech side. Yeah. They You sent that
great article from Forbes about just the problems with the
modern patent system, and that was one of the great
points that I can't remember who wrote the article, guy

(34:29):
who found a priceline jay Walker. Really yeah, he said that,
you know, people are so scared companies are these days
of infringing on patents because if you can prove that
you knew about this patent, then you could be in
big trouble. So they're not even looking, which is the
original idea of making these things published is like I
said earlier, so people would go and look up how

(34:50):
someone did something. Maybe I can improve upon that. So
people aren't even looking now because they're afraid that they
will be it'll be traced back and be like no, no, no,
we know that you saw this. Yeah, this patent pulled
three years ago. Yeah. Because the penalties for accidental infringement
and willful infringement are vastly different, it's a big problem. Well,
the the jay Walker suggests that you kind of cut

(35:12):
the courts out and maybe make some sort of make
it easier to license things. So you just create some
big national exchange where somebody can go and easily give
somebody some money or temporarily licensed whatever they need. And
he cites some um, I think a forest research study
that suggests of the five point seven million patents that

(35:36):
the US is granted, two point one active patents okay
go unused and unlicensed, and of those, approximately half a
million are considered to be like high quality patents. They
just a lot of them are from university research. Uh,
and they just sit there, yeah, and so protected. The

(35:56):
same the same study found that like one trillion dollars
of revenue is not generated each year in the United
States because of this unused innovation that's just sitting there
in this this um in this big pot. Yeah, a
big guarded vault with a pot in it of unused ideas. Yeah,

(36:18):
which definitely goes against the spirit of the original idea
for sure, you know, Yeah, which means the system is broken.
It is broke. The other way that it's broken two
is the enormous backlog that's going on at the patent
and Trade Office, Oh, just getting it reviewed. And yeah,
so if you file a patent, and we're going to
talk about this in a minute, but um, if you

(36:38):
file a patent, chuck and they rejected, that is not
the end of the story. You can keep coming back
and back and back and back. In fact, you usually
will get rejected on the first try for one reason
or another. Right, but every time you come back, you
add to the PTOs already big backlog, right of course.
And so apparently there's another another study that Ours Technica

(37:01):
wrote about or carried out that that found that there
was a huge decrease in the backlog under the Obama administration.
But they suspect that it was because the PTO lowered
their standards and issued patents for a lot of shoddy
patents just to get people to go away to clear
the backlog, because that's the best way to get rid

(37:23):
of somebody who keeps refiling their patent. It's just grand
them the patent and get them out of your hair. Well,
they're saying, yeah, that decreased the backlog, but it led
to a lot of shoddy patents, which in turn led
to the patentrol industry. Yeah, and a lot more burden
on the courts to suss all this stuff out later. Exactly.
The problem is the patent office has an incentive to

(37:46):
keep letting people file and file again because they make
money every time they generate revenue from that. Yeah, it
cost I mean, the actual patent itself will cost you
five or so that you have to up keep every
year and pay a little bit more maintenance fees. Uh, well,
it depends. Have you seen the feast schedule. Yeah, there's
like thirty or forty different things you could pay fees for. Well, yeah,

(38:09):
it all depends on what how detailed your patent is
and what you're trying to get through. Um. All right,
well let's talk about what you can and can patent.
We've talked a little bit about it. Um, you cannot
patent something that is exists in the natural world, like
a discovery. Like they gave another great example, Einstein's law

(38:30):
of relativity. He can't copyright that or patent it. I mean,
it's it's a thing. He might have named it and
figured it out, but it occurred long before Einstein was around,
just in the solar system. It kind of it belongs
to the universe. It belongs to the universe. It's a
good way of saying it. Um, you can patent like

(38:50):
an industrial process, like we said computer programs. You can,
but it gets a little dicey. Um. And you know,
if you if you have something you think might be patententable, patentable,
patentable or not, what you the first step you probably
should is like higher in either an agent or an attorney,
an agent or a patent attorney. Yeah, and a lot

(39:11):
of people do. And this is if you're like serious
about this stuff, like you really think you're onto something.
This is something you do not just hey, you got
this idea for a thing. Uh, You're not gonna want
to spend thousands and thousands of dollars unless you really
think you're onto something. Right, So the first step you
want to talk about the steps of patenting something, Yeah,
I guess the first step you can do is to
do a search yourself. Um. I think Google even has

(39:33):
a search function to search patents in the United States,
Um easily. But if not, you can definitely go to
the U S Patent Office site and search you some
keywords to kind of generally describe what your invention is.
To just see off the bat, if there's already something
out there that's patented, and there probably is. Yeah, it's
very rare to have a truly truly unique idea through days.

(39:55):
But if you have something and you're like, like the
guy who made the thermonuke clear fusion reactor in his
garage is sixteen year old, right, if he wanted to
patent that, there's probably a pretty good likelihood that he
could get that patent, and then it's gonna be worth
a ton of money. So we're gonna take that kid
and run him through the patent process because it's gonna
pay off for him in the end, despite the enormous

(40:17):
amount of money that he's going to have to spend
up front to just to get the patent protection in
the United States. Right, So he searched the database. Let's
say he went to the office in person, because that's
what kind of kid he is, and he looked through
the files and he found you know what, I think,
I'm onto something. I don't see anything else in here
that's super like it. I feel like it's novel and
it's innovative and it's not obvious and so um, but

(40:41):
it's there's a lot of money on the line here.
So I'm gonna hire a patent lawyer, who, Um, patent
agents aren't attorneys. They function similarly, but an attorney obviously
has a little more power under their belts. Well, they
have a technical degree typically and a law degree, so
the understage it just knows about the patents. They don't

(41:04):
have the law degree. They have the technical expertise because
you have to be able to look at the the
actual invention and understand how it works or if somebody's
just trying to pass off something dumb like you're you're
not a divorce attorney and a patent attorney. You might be,
but probably sure there's probably one out there. So, um,

(41:26):
a patent lawyer will review everything and say, yet, I
think you are onto something here with your garage nuclear
fusion reactor. Kid, You're you're a heck of an inventor,
and I think we can take this right through the roof.
So who's this guy? He's you know the kids stays
in the picture, dude, Hut, what's the guy? The producer,

(41:49):
legendary producer, the r Yeah, Robert Evans, that's who. That's
who this attorney is. Yeah, okay, we're getting this nailed. Man,
Like we're really filling it out with great detail. Although
Lionel Huts or I'm sorry Robert Evans may say, you know,
there is a patent here, don't waste your time. Um,
it's up to you. But like it's really similar in

(42:10):
these ways, or maybe hey, this thing is super similar,
but this actual process within your patent that you're applying
for is super unique, so maybe you should just focus
on that, right, and then you can license it to
the person who's already got the patent exactly. Uh. And
then that's the point where the kids is all right,
I want to move forward on this smaller part or
the original patent, and I want to fill out my

(42:31):
application like anything else. That's the first step, as you
have to fill out that application and send it in, yes,
with some money, with some money depending on who get
to pay that up front, right, it's for the for
the application fee. Yeah yeah, um. And then after at
that moment, once you file your application fee, your patent starts,

(42:54):
so that twenty year protection that doesn't kick in when
your patent is granted, like, it kicks in from the
date you filed your application, So you can go out
and put patent pending on your thermonuclear fusion reactor and
start selling it to people. That's right. In your application,
you you kind of have to spell it all out
for him. You can't just throw your idea in there

(43:16):
and say, you guys, do the research and see if
there's anything else out there. You have to list any
kind of um, potential roadblocks and prior art that may
be similar for them to review. You have to briefly
summarize your invention. You have to give a description of
what they call their preferred embodiment, which means how are
you going to use this thing basically, yeah, or like

(43:38):
what shape is it supposed to take? How do the
components fitting together? Uh? And then your claims, which are
this is the most important part um, and this is
what you're actually going to be arguing about in court
if you have to go that route. Is your claim
and that is the actual legal description of your invention, right,

(43:58):
and Uh, if you're claim is very well written, if
you spring for a great lawyer Robert Evans, Yeah, this
this claim is going to be very well written, very concise,
very um descriptive and so, but also sufficiently vague. Sure
you know, because when you do take somebody to court,
and you say, this guy has totally ripped me off.

(44:21):
Here's my patent. Here's the description of what my thing does.
Now look at what this guy is doing. It's the
exact same thing that my patent lawyer described years ago
when I filed my patent application. So the claim is
extremely important. I mean like it's it's basically it's as
important as getting the patent itself. Yeah, yeah, totally. Um,

(44:42):
how much you're gonna pay that attorney all depends, of course,
on how many hours they spend. But they put in
this article between five thousand and twenty dollars. Yeah, I
saw more than that. I'm sure it can get up
to as much as you know. I'm sure corporations pay
these people a lot of money. Yeah, Well, the patent
office actually has a sliding sc ale of um fee

(45:02):
fee schedules. So like, if you are a micro entity
I think, which is like just probably one guy, you're
a you're an inventor, you're gonna pay the least. If
you're a corporation, you're gonna pay the most. And that's
for the patent fees, not the attorney's fees. Right, they
don't care about those. No, But if you're a corporation
and you have a lot of like a large patent portfolio,

(45:24):
and you have an R and D company, you have
a patent attorney, a stable patent attornies you are working
on that anyway to have their own office in your building.
But I saw for m A in a two thousand
five article, I saw a a study had found that
for a small size business, so probably the middle slot

(45:44):
of the schedule fee UM, it would cost about three
thousand dollars to get and maintain patents in ten industrialized countries.
So I mean, like, if you've got a thermonuclear fusee
and reactor and it works, it's gonna totally be worth that.
You want to patent it everywhere you can possibly do

(46:07):
that because you're going to make You're you're going to
change the world with it, and probably as many sub
patents as you can create. If you are kind of
shaky on your idea or you don't think it's gonna
end up paying off that much, then who knows, Maybe
a high flute and patent attorney isn't the way to go,

(46:28):
but maybe you go the route of like a UM
inventors help group, Like there's actually one called invent help,
and some of those some of those things are scams.
I looked up invent help. It appears to be totally legitimate.
It's got an a minus rating on the Better Business Bureau.
What do they do? Um? You have you ever watched
like daytime television? They're like inventors, Do you want to

(46:49):
help get your invention to market? They do every every
step of the way, like you submit your invention. I
think they help you get it patented, to help you
market it. They may set up a website to sell
it on TV. Yes, they get a piece of the
revenue down the streath, down the line. Or they may
also require fees along the way. Um, but some of

(47:12):
them are kind of scammy. Apparently invent help is not UM.
And then another good resource for you if you are
an inventor of limited means, would probably be to get
to the Lemilson Foundation that was established by that inventor
Jerome Lemilson, who spent most of his career suing companies
that we're using as his patented stuff. Um. They I

(47:34):
think it's called Lemilson Foundation dot org. They have a
bunch of programs to help inventors, especially young inventors. It's
a good place to start. I would think, all right,
we're gonna finish up on how to finish up the
patent process and a few more critiques right after this. Alright,

(48:08):
so this kid has has turned his idea into the
patent office. Um, like we said earlier, it has a
pretty good chance of getting rejected on the first pass,
and they will tell you exactly why, and then it's
up to you whether or not you want to redo
it or just bail on it all together, or you know,
like I said, redo it and resubmit it and see

(48:30):
how your luck runs. Right, And the reasons for rejection
can be myriad, you know, like literally thirty thousand different reasons. So, uh,
it can be something from the patent office saying like
we think that this is way too close to another
already patent invention. We don't think it's necessarily an improvement,

(48:51):
it's not useful. These are the very high level reasons
they can be rejected. If that happens, then you might
want to go back to the drawing board. And more frequently,
I think it's like we think the wording and your
claim is a little too vague. We don't quite understand
the description. Can you make these changes to this paragraph
You're drawing is missing a label like the the patent

(49:15):
is supposed to be flawless, well written, the like. If
you hire a patent attorney, they're going to hire an
artist to do the drawing for that's submitted to the
patent office. Um, so it's like really supposed to be
professional and well done and so like for any minute
technical detail, they can reject it, but then they'll also
explain why, and then you can just make the change

(49:36):
in refile. Um. If it's something that's just kind of
open new interpretation. If you have a patent attorney, your
patent attorney can be like, let's negotiate this point and
hopefully get the whole thing passed through. And I wonder
if you have to go back to the back of
the line, or if you have a new phone number
you can call. I don't know for like, you know, man,

(49:58):
that's the key, isn't it. Get that that secret phone
number to the person who actually picks up the first time,
and you can be like, please help me. Yeah, um,
I don't think one thing we did mention if you uh,
and it gets really dicey if you work for a
company and you have an invention as an employee of

(50:19):
that company. Um. There have been countless hanky situations. I
remember the one they made the movie about the guy
who um invented the delayed Winschield wiper. Is that a
documentary that's out on Netflix? There probably is, But I
think what's his face to the guy from As Good

(50:41):
as It Gets Great can here? Um? I didn't see
the movie though, but I think that was a case
of someone who works for or worked for a company,
or maybe he didn't work for a company. Maybe he
just presented it to car companies and he thinks they
ripped him off. But if you work for a company,
you might get the pat but the company might still

(51:01):
own the product or the process that you invented, you know,
because you did it as their employee under their per view.
But you might still get a personal patent for it,
but maybe you might not benefit like you would as
a as a private person. No, And basically, if you're
an inventor, good luck getting a contract with the Corporation

(51:23):
of the United States where you don't automatically sign over
every bit of your invention to that company. Or if
you are if you create anything creative, you are probably
have a work for higher contract where all of your
work that you write or draw, or design or compose
automatically belongs to the company. So the ironic thing is

(51:44):
it is like you are technically the creator of that
work or that invention, but if you go and republish it,
like on your own personal website, you're infringing on this
copyright right um, that your your company owns, and your
company can sue you to to to stop or to
do whatever. Um. And that's a big critique of the

(52:04):
patent system too, is that there's not a lot that
the Patent and Trade Office can do about it. But
just the way the system works right now, corporations have
all of the power as far as patents go. Yeah,
that's it's such a tough thing. I mean, you hear.
They're just countless stories from history of so and so
invented this this thing that we all use, but they

(52:26):
never made a penny off of it because they did
it for IBM, or like the guys who invented Superman,
they were paid like a hundred and fifty or three
hundred bucks by d C and um basically told thanks
a lot and over the years is DC made tens
and tens and hundreds of millions of dollars off of Superman.
These guys were like, like, this isn't right, And finally,

(52:47):
after there was enough outcry, they were granted like some
some back revenue. They got a cape. Do you remember
our Christmas extravaganza from last year? The guy who composed
Rudolph the Red Nose Reindeer for Montgomer Reward and hit
on hard times and the president of Montgomery Ward granted
him the copyright to root off the Red Nosed Reindeer.

(53:09):
That like, that doesn't happen, Yeah, and that's that's a copyright,
not a patent er and invention. It's I see both
sides a little bit. You know. I always think that
corporations are the ones taking advantage. But if you work
for IBM and you have they have given you the
resources and paid you money to do this, then that's
you know, quit your job and go invent something on

(53:29):
your own. Then you know, yeah, um so a kind
of see both sides, But generally I think corporations probably
sticking it to the man. So, speaking of corporations sticking
it to the man or humanity in general, UM is
of the pharmaceutical industry again, so I said that they're
they're very happy with UM. The status quo and one

(53:52):
of the great criticisms of the patent system now as
it is is you can get a patent. You can
buy a pat and just sit on it, like you
can buy a patent, say from a competitor, or from
somebody who may be a competitor down the road and
prevent them from making it. Even if this thing benefits humanity,

(54:12):
even if it literally saves people's lives, you can you
can sit on a patent, and apparently drug companies have
been known to do that. There was one famous UM
case with a company called am Gen, and they developed
an anemia drug that treated anemia and iron deficiency and
it worked really well. Um the problem is is like

(54:34):
the body absorbed it really quick, so you had to
take large doses for your whole life. Apparently this researchers
chemist found a way to make the drug longer lasting,
which in am Gen's mind meant, well, we can't make
as much money off of it. So this lady was like,
can I just see your patents and I can figure
out a way to to latch this onto your drug

(54:58):
and save lives and a. And it's like, no, we're
not gonna let you see our our materials are researched.
We don't want to make that better man. But so
that and that's that's not as overt as buying a
patent sitting on it to keep people from doing it.
But that does happen like it's a it's a it's
a it's a competitive way to navigate the business climate. Well,

(55:23):
put Josh, you've worked your way around that one very nicely. Oh,
I got something here. Um, if you it might take
like a year to five years to get this patent
um from pending two approved. And let's say you put
in an idea very similar to someone else around the
same time. That happens all the time. If that happens,

(55:45):
they declare and what they call an interference a dance off,
a dance off exactly, And they have to actually have
a little trial, um, a little trial like they serve
tea and everything's in minuture, everything small. Um. They have
a trial where they basically figure out who got there first. Yeah,

(56:07):
there's a very famous case of um Alexander Graham Bell
and Elijah Gray Um basically putting in a pattern for
the telephone at the same time. And I guess for
a long time it was whoever could prove they invented
it first in the United States was the one who
got the patent. And then I just to simplify things,

(56:27):
in March of two, the US changed its patent law.
So now the first inventor to file is the one
who receives the patent. So even if it's by a minute,
whoever got it there first is the one who gets
the patent. That's why filing that patent right away is
uh is your best defense? Like go now, stop, press pause,

(56:50):
and go do it right now. Seriously, if you have
an invention, Um, I just got one more thing on
the the old the infamous poor man's patent or poor
man's copyright. Sure, everyone's heart, Like all you gotta do
is write it out and mail it to yourself. I
think I suggested that on this this this show before,
didn't you remember? I don't remember that. But that is

(57:10):
just an old wives tale that's not going to hold
up in court. It's basically worthless. But I don't understand
why if like right when you create the work, it
automatically is copyrighted why would that, like dating it not
make it not just substantiated even more Well not, I'm

(57:30):
not talking about writing a book. I'm talking about Hey,
I'm I did this invention and here's the schematic and
I'm gonna mail Okay, okay, So it could work for
something copyrighted, but not a patent. Well no, I mean
if it's if it's just an original work of art
you've created, like a book, then like I said, it's
already copyrighted, so they doesn't even apply. Okay, So but

(57:50):
if you invented something in designed it and just mail
this to yourself, it's worthless. Basically you can't prove like
envelopes can be steamed open and manipulated like that's not
gonna hold up in court. You can do it if
you want, sure, take it to court. I have an
extra stamp that I don't know what to do with.
That's right. Uh, let's see you got anything else? Nothing else?

(58:11):
If you want to learn more about patents, Uh, it's
actually surprisingly interesting stuff. Um you can type that word
in the search part how stuff works dot com. And
since I said that, it's time for a listener mail,
I'm gonna call this. Thanks for the panic attack episode.
I'm glad they said episode. We've got a lot of

(58:33):
great feedback. I think this touched a lot of people
because they're way more common than you think. Um, Hey, guys,
love the episode on panic attacks. I have them in college,
brought on by normal college stress plus the loss of
a beloved uncle. I would often wake up in the
night standing in the hall of my dorm feeling like
I could not breathe. Sometimes I would be awake enough
to think I'm dying. I just need to get the
hallway so someone will find me or my body. Sometimes

(58:56):
I would just wake up screaming. What helped and the
reason I'm writing was some wonderful therapy offered through my
university's health services, along with some antidepressants. In the support
of my family and friends. I learned coping mechanisms to
get me through my anxiety, how to express my stress
so I wasn't bottling at all up inside, and the
importance of taking time to rest my mind and body.

(59:16):
With all the help, I was able to leave therapy
after a few semesters, was able to recognize that I
needed it again later and graduate school. After the birth
and my second year with my much loved but very
unplanned child. I urge all college students, graduate and undergrad
to really take advantage of their mental health services that
are offered to them. For me, as a student at

(59:36):
my university, each session was only ten bucks. Man, remember
that college. All that stuff was so cheap, like the doctor.
You can go see a shrink for like five dollars.
I remember I got acupuncture of like three bucks a
sessionally they no I did that in l A through
a university though my roommate there's just some dude exactly

(59:57):
he was good with a needle. Um uh. And it
could also be charged to my bursts our account, which
I don't even know what that is. Burs sir. Yeah,
I didn't have one on those ben't. Yeah, I remember
that from college, but I don't remember what it was.
I think the word looks familiar. The health building was
on campus, so sessions fit right into my schedule. And

(01:00:19):
I can't stress enough how beneficial it was for me.
Without therapy, I would no doubt have not made it
through college and graduate school. There's no shame in therapy
or medication to help you through tough times. Turns out
pretty much everyone goes through it to some extent, and
no one is weak for getting help. Admitting you need
help is what makes you a stronger person. In my opinion,
and Rosalie Maltby, researcher at the University of Oklahoma Department

(01:00:44):
of Biology, I couldn't agree more. Well, thanks a lot,
is it Rosa Lee, Rosalie, Rosalie, Thanks a lot, Rosalie.
We appreciate you writing and spreading that message because it's
a good one. Very pretty name as well. Um, if
you have a patent, we want to hear from you.
Tell us what your patent is so we'll steal it.
Oh no, no, can't. It's patented about. If you've got

(01:01:05):
a great idea that you haven't yet patented, send that
to us. Whatever you want to do. You can tweet
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(01:01:31):
Is it how stuff Works dot com.