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Why does the Government Grant patents?

Posted by attorney Charles Runyan

The government grants patents, which give their inventors a right to exclude others from practicing the patented technology. In return, the inventors must disclose the technology to the public instead of keeping it secret.

35 U.S.C. § 112 pertains to what extent the inventor must disclose the technology of the invention to the patent office to receive a valid patent. It is more of a formalities requirement than it is anything else. Also, it’s not a question of whether the invention qualifies for a patent or not, but rather how forthcoming the inventor must be when preparing the application.

But this section insures that the government’s getting a fair deal. Granting the ability to exclude competitors is by its very nature anticompetitive. Thus, it hurts the economy because it allows the patent holder to either charge a marginally higher price for its superior product (containing the invention) or it allows the patent holder to gather a greater market share because its product contains superior features that its competitors are prevented from adding to their product.

But the government grants the exclusionary right despite the negative effect on competition. It does this because, in return for the exclusionary right, the patent holder must fully disclose all of his or her knowledge pertaining to the invention that one of ordinary skill in the art doesn’t already know. This disclosure increases the total body of knowledge available to the public in exchange for granting the exclusionary right. (The patent holder can’t get a patent while keeping the recipe for the secret sauce secret).

Also, the new invention solves a problem that someone hasn’t already solved or that someone has solved in another way. Once the patent expires, everyone will be able to use the new information. Moreover, if the invention provides enough of a competitive advantage, other competitors will have to create a different solution to the problem, but they’ll have the patent holder’s disclosures to assist them in their efforts.

35 U.S.C. § 112 requires the patent holder to disclose the information that the government wants in exchange for the government granting the exclusionary right embodied in the patent.

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