Patent Rights Explained
“The Bar Stool”
The complex legal position of a patent granting negative rights can be easily understood by the provision of a simple fictional example in relation to a three legged stool. Bob the local carpenter developed the first three legged stool in the world as a cheap seat for his local community. Bob often watched the Dragons Den and being aware of IP, he contacted the local Patent Attorney who drafted and filed a patent application for Bob. The patent was subsequently granted and Bob made and sold his three legged stools with considerable success. Dave the local publican bought twenty of the stools off Bob but noticed that on occasion one of his customers would become inebriated and fall off the back of the stool onto the ground. Dave was concerned about his liability in the event of a customer making a large personal injury claim and it occurred to him that a back support extending up out of the seat of the three legged stool would solve the problem of people falling off the back of their stools onto the ground.
Dave decided that he had invented a new product and contacted a Patent Attorney and asked him to prepare and file a patent application for his stool with a back support. Dave was so sure that his idea was new that he decided to go ahead without carrying out the prior art search recommended by his Patent Attorney. As the Patent Attorney was preparing the specification, Dave decided to press on with product development and brought a number of the old stools he had in his bar to a local carpenter. Dave asked the carpenter to modify the stools by putting a back support onto the stool. The carpenter made the stools and returned them to the bar and to Dave’s delight there were no further incidences of people falling off the back of their stools. Dave contacted the carpenter and asked him to start manufacturing more of the new stools as he intended to supply them to every bar in the land.
To Dave’s surprise just a year into production, his carpenter received a letter from Bob’s Patent Attorney informing him of the existence of Bob’s earlier patent stating that manufacture of the improved bar stool with the back support was an infringement of Bob’s earlier patent describing a stool without a back support. Dave immediately went down to his Patent Attorney’s office demanding to know what the meaning of the letter was. Unfortunately, Dave’s Patent Attorney had to explain to Dave that the earlier patent claimed a monopoly on a seat comprising a support surface spaced apart from the ground by three legs projecting from the underside of the support surface. Although Dave’s product was an improvement on the earlier stool it still had to use the same support surface and three legs so therefore it was infringing Bob’s earlier patent. Fortunately for Dave, Bob had taken quite an interest in this new stool and offered Bob the possibility of a royalty free cross-license agreement where Dave could put his stool with back support on the market provided Bob could use Dave’s back support on a new range of stools he was interested in manufacturing for a different market. Dave and Bob sliced up the market appropriately and carried on with their own successful exploitation of all of the patents concerned.
Prior art search
On a more serious note, although the bar stool story ended well, many cases like this end up in bitter court disputes costing huge management and financial company resources. It is essential that before large amounts of money are invested in tooling up and manufacturing on the basis of potential patent protection, that a thorough patentability and infringement search is conducted to ascertain the strength of your IP and to avoid the risk of infringing a third parties earlier IP rights.
Monopoly rights
A patent is a monopoly right which means that if someone else independently invents the same patentable invention after you have obtained patent protection for it, even if they never saw your product, then your patent should prevent them from manufacturing, using, importing, selling, offering for sale or keeping their product for these reasons. This is a very strong right and affords a serious market advantage for companies that are developing products and processes.
Patent granting authorities
A granted patent affords a monopoly for twenty years therefore the patent granting authorities rigorously search and examine patent applications prior to granting these monopoly rights. Each invention must be described in a written patent specification terminating in a set of claims which define the extent of protection you are claiming. The specification must be drafted in a manner sufficiently clear and complete to allow the public to work the invention after the monopoly expires. The patent granting authorities publish all pending patent applications after eighteen months and any third party may file observations on the patentability of the patent application. If the applicant pays a search fee, the Patent Office will conduct a prior art search and the results of this prior art search are reported to the applicant who can then decide whether it is worth proceeding based on what the search has turned up. If the applicant wishes to proceed they must request an Examination of their application against the prior art uncovered by the search. If the applicant decides to proceed and pays the examination fee, a Patent Office Examiner will provide a detailed written report comparing your technology to that found in the search report. The Examiner outlines their case and states that your invention is novel and inventive in the light of the earlier published technology in which case a patent will be granted. Alternatively, the Examiner will state that your invention lacks novelty and/or inventive step in which case you will be given an opportunity to amend the claims of your patent or present convincing arguments to persuade the Examiner that a patent should be granted. If the Examiner accepts the amendments or arguments then a patent will be granted. The patent expires twenty years from the date of filing of the patent application providing annual renewal fees are paid on or before the anniversary of the date of filing.
