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Necessity is the Mother of Invention

08/15/2017 10:28 PM | Elizabeth Barnhard

Have you ever said there has got to be a better solution?  If you said yes, then you are describing a need for something that can force you to find a new way of getting or achieving that solution.  This may result in your creating a new invention.  An old proverb, necessity is the mother of invention, sums it up.  Can you protect an invention to add value to your business?  Yes.  Your invention can be protected with a patent.  Fans of the show Shark Tank know that a frequently asked question is “Do you have patent protection for your product?”

What is a patent?  A patent protects a new and useful invention by giving the owner the right to exclude others from making, using, selling or offering to sell the patented invention for a limited period of time.  The quid pro quo for this patent right is that the inventor discloses information necessary to educate the public about the invention, which information is published in the patent.  Disclosure of the invention enables the public to learn from the inventor’s technology, thereby facilitating further innovation.  The promotion of the progress of science and the useful arts was considered so important when the U.S. was founded that the U.S. Constitution gives inventors the exclusive right to their discoveries for a limited time in Article 1, Section 8.

What can be patented?  Any new and useful process/method, machine, manufacture, or composition of matter, or any new and useful improvement of these categories of inventions, or as the U.S. Supreme Court stated in 1980, “Anything under the sun . . . made by man”.  There are three types of patents to protect inventions: utility patents, design patents, and plant patents.

Utility patents cover function or technical features and give the owner patent protection for 20 years from the date of filing a patent application.  Thomas Edison was a prolific inventor from New Jersey, nicknamed “the Wizard of Menlo Park,” who obtained 1,084 U.S. utility patent patents and 9 artistic design patents.  His many inventions included the phonograph, the kinetoscope, the Dictaphone, the electric lamp, the incandescent light bulb, the autographic printer, and a carbon microphone for the telephone.  However, necessity is the mother of invention, which is why one of my favorite utility patents is the first practical dishwasher patented in 1886 by Josephine P. Cochran (U.S. Patent No. 355,139).

Utility patents do not just protect high tech inventions.  The original Barbie doll was patented in 1961 (U.S. Patent No. 3,009,284).  Do you love s’mores?  A high school girl did and she and her father obtained a utility patent for a machine and method for making s’mores (U.S. Patent No. 8,156,859).

Design patents protect tangible, static articles, but can also cover animated articles, computer icons, web page features and web page layouts for 15 years from the date of grant of the design patent.  The purpose of a design patent is to protect the ornamental appearance of products and to protect portions visible to users.  Some examples include Apple’s design patent protecting the shape of the iPhone (U.S. D594087); Rolex’s design patent protecting the ornamental features of a diving watch (U.S. D404322); a design for a shank of a drill bit (U.S. D257511); an icon for a portion of a computer display screen (U.S. D649156); and, for golf lovers, a golf-ball shaped ashtray (U.S. D665125).

Plant patents protect plants that are stable and asexually reproduced for 20 years from the date of filing the patent application.  Plant patents can also protect cultivated sports, mutants, hybrid, and newly found seedlings in a cultivated area, but not tube propagated plants.  The first plant patent was issued in 1931 to Henry Bosenberg for his climbing, ever-blooming rose (U.S. PP1).

You can view copies of these patents at http://www.uspto.gov or http://patents.google.com.

Is there a catch?  You can exclude others from making, using, selling or importing your patented invention, but your patent rights do not automatically enable you to make, use, sell or import your own invention.  Confusing?  This situation tends to arise where you have overlapping patent rights, especially in areas where there are improvements being made to existing products.  For example, the smartphone wars between Apple and Samsung have included Apple suing Samsung for infringing its iPhone design and utility patents and Samsung suing Apple for infringement of its mobile technologies patents.  The stakes are high for these two competitor companies who have been involved in more than 50 patent infringement lawsuits around the world, claiming billions of dollars of damages. 

How do patents add value to your business?  Patents help you create a competitive edge with new and improved technological innovations that you created to address an unmet need, and these patents may dissuade potential competitors from attempting to enter your market until after your patents expire.  From a PR perspective, being named as an inventor on a patent is a significant achievement and you can market your product as being a patented product.  When your business owns the patents for the inventions you have created, these patent rights can be sold or licensed to others to use to generate revenue, or they can be used as collateral to obtain financing.  You can stop competitors from the unauthorized use or sale of your patented innovations. 

Want to know more?  I am here to answer your questions and help you recognize and protect your company’s valuable inventions. 

Elizabeth Barnhard

Leason Ellis LLP


(914) 821-3074


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