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Why Geim Never Patented Graphene
gbrumfiel writes "As we discussed on Tuesday, Andre Geim won this year's Nobel prize in physics for graphene, but he never patented it. In an interview with Nature News, he explains why: 'We considered patenting; we prepared a patent and it was nearly filed. Then I had an interaction with a big, multinational electronics company. I approached a guy at a conference and said, "We've got this patent coming up, would you be interested in sponsoring it over the years?" It's quite expensive to keep a patent alive for 20 years. The guy told me, "We are looking at graphene, and it might have a future in the long term. If after ten years we find it's really as good as it promises, we will put a hundred patent lawyers on it to write a hundred patents a day, and you will spend the rest of your life, and the gross domestic product of your little island, suing us." That's a direct quote.'"
RTFA. In the next paragraph Geim talks about what the guy from the electronics company meant. Patents only work if they are for specific devices or processes. Since graphene hasn't been use in any practical real-world solutions yet, there's really nothing to patent at this stage. The company that develop devices and uses for Graphene will end up filing more specific and enforceable patents.
He wasn't necessarily knocking the system.
In the US, the standard is "not obvious to one having ordinary skill in the art". In other words, someone with more skill than Joe Sixpack, but less skill than an expert in the field.
In the US, the standard is "not obvious to one having ordinary skill in the art". In other words, someone with more skill than Joe Sixpack, but less skill than an expert in the field.
It's a little more complicated than that. The level of skill involved depends on the subject matter. If the patent is about a simple mechanical device, then the level of skill will be relatively low. Perhaps a bachelor's degree in mechanical engineering, if that. If the patent is about a complex genetically modified organism, then the person having ordinary skill in the art would have a high level of skill, probably a Ph.D in biology with some additional years of experience.
You tend to have alleged infringers arguing that the level of skill in a given case is very high and therefore the super-genius involved would easily have found the invention obvious. The patentee tends to argue that the level of skill is very low and that the Joe Sixpack involved would find the invention astonishingly unobvious.
The European Patent Convention--and thus the patent law of EU countries--follows a similar standard as the US ('a person skilled in the art').
Something obvious you simply avoid doing for (probably)good reason is still obvious.
How many of those same programmers who I assume were at least moderately skilled in the art would have had the slightest problem creating code to let a book get bought and shipped by one click?
Where is the invention?
Where is the non-obvious bit?
If every gun manufacturer included a safety but is quite capable of building one without but don't that doesn't make it an "invention" when one of them does even if it turns out that people like guns with no safetys.
It's an ideal poster child for bad patents.