What Can Be Patented?

datapulse asks: "I was wondering what exactly can be protected by a patent? Can I patent an idea or a business idea? I ask this because I've always thought that only a tangible invention could be patented. I have a lot of ideas that I believe could be of very good use but I don't have the capital to put them to work." I'm running this one mainly so we can have a discussion on the true meaning of the "patent" and why so many of us disagree with the idea of software patents. As I understand it: patents were to protect the details of implementations, not ideas, but software patents have blurred this area tremendously. (Read More)

Tom Dunstan is wondering if it might not be a good idea to start up some sort of Patent Watch: "It seems that we only hear about patents (taken out in the U.S., at least) after they get granted. How public is the patent registering process? Would it be possible for the FSF or some likeminded volunteers to keep an eye out at the patents office so that we can make representations on the idiocy of some of the patents being granted before they get given? "

Comments

What the USPTO says

[Carnage4Life]

WHAT CAN BE PATENTED

(Excerpted from General Information Concerning Patents print brochure)
The patent law specifies the general field of subject matter that can be patented and the conditions under which a patent may be obtained.
In the language of the statute, any person who "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," subject to the conditions and requirements of the law. The word "process" is defined by law as a process, act or method, and primarily includes industrial or technical processes. The term "machine" used in the statute needs no explanation. The term "manufacture" refers to articles which are made, and includes all manufactured articles. The term "composition of matter" relates to chemical compositions and may include mixtures of ingredients as well as new chemical compounds. These classes of subject matter taken together include practically everything which is made by man and the processes for making the products.
The Atomic Energy Act of 1954 excludes the patenting of inventions useful solely in the utilization of special nuclear material or atomic energy for atomic weapons.
The patent law specifies that the subject matter must be "useful." The term "useful" in this connection refers to the condition that the subject matter has a useful purpose and also includes operativeness, that is, a machine which will not operate to perform the intended purpose would not be called useful, and therefore would not be granted a patent.
Interpretations of the statute by the courts have defined the limits of the field of subject matter which can be patented, thus it has been held that the laws of nature, physical phenomena and abstract ideas are not patentable subject matter.
A patent cannot be obtained upon a mere idea or suggestion. The patent is granted upon the new machine, manufacture, etc., as has been said, and not upon the idea or suggestion of the new machine. A complete description of the actual machine or other subject matter for which a patent is sought is required.

Problem as I see it

[Yaruar]

The patent system has basically been created for technology production at which it is very good.

If I invent an object I patent that object and therefore I own intellectual rights over it's creation.

This can also be applied well to the physical process of production, ie how I made it

The problem now is that patent law is being applied to areas where it doesn't apply

Take for example software patents. Amazon wrote code for the single click process and that code is theirs. However they patented the process of application rather than the process of production. Basically like if macdonalds patented the idea of taking money and putting it in the till rather than patenting a specific till design.

I've been thinking about this a lot at the moment. In Pharmacuticals there is a very specific patent system whereby after a certain number of years people are allowed to release the same product freely. Maybe a derivation of this law would be better applied to the software industry, whereby people own the rights to their product for 5 years after which time it becomes freely available. IANAL and I'm not entirely au fait with the process of drug patenting, but I think this could be worked.

ALthough also with the distinction between production and use. 'Cos Otherwise I'm off to patent the hamburger.

Thinking aloud...

[Black Parrot]

The legal basis for patents in the USA is, as I understand it, something along the lines of promoting commerce by encouraging people to share what they might otherwise keep secret in order to retain a competitive edge.

If that is correct, then the implications are astounding: you should only be able to patent something that others can not observe.

For instance, suppose you are a musket maker and you start making firearms with rifled barrels. People notice the increased range and accuracy of your work, and it doesn't take a genius to look down the barrel and see what you have done. One cannot, however, tell how you did it.

So patenting the rifling itself does nothing to promote commerce; indeed, it hinders commerce by keeping other craftsmen from producing the more technologically advanced work. But patenting your technique for rifling the barrels does promote commerce, because it allows licensed parties to start rifling barrels by your method, which otherwise they would not have been able to deduce (unless, of course, it was "obvious to a skilled worker in the field").

Hence my conclusion: if my understanding of the basic phrasing of the legal basis for patents (in the USA) is correct, and if that written basis was for real (rather than, say, just a nice excuse to justify something that the public might not care for otherwise), then it should not be possible to patent anything observable, whether it be one-click shopping or windshield washers. Patents should only apply to things that would otherwise be trade secrets, if not revealed by the patent.

Caveat lector: I am not a lawyer. (But I will consider honorary degrees from suitably prestigious institutions!)

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