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Patent Law 102

Posted by attorney Bruce Burdick

The law has changed and Patent Law 101 is no longer good law. On 9/16/2011 a major revision was passed that changes the bargain and changes the rules for patents.

Patent 101 says THE FOUNDATION OF PATENT LAW is Article I, Section 8, Clause 8 of the Constitution which states: "The Congress shall have the Power . . . To promote the Progress . . . of useful Arts, by securing for limited Times to . . . Inventors the exclusive Right to their respective . . . Discoveries." This is frequently called the "patent clause" of the Constitution. It was based on a natural rights theory that patents should not go to favorites of the King or Government, but rather as a reward to the first and true inventor for the creative effort and labor involved and as an incentive not to keep the invention secret where it might die with the inventor and never benefit the public.

Patent 102 says inventor does not mean first and true inventor but rather first to get to the Patent Office and claim to be an inventor so that patents become a reward for speed rather than creative labor. And priority of examination now goes to those fat cats who can pay for priority while small inventors wait for years for their patents. This gives the advantage to Big Business, (that is who proposed this change) . And now IBM's former patent manager, a political appointee nominated by IBM's Senator, now runs the Patent Office and IBM gets the most patents. So we are back to favorites of Government getting patents


Patent 101 said an invention patent was a property right given by Congress to a first and true inventor to stop others from making, using or selling an invention claimed in a patent. Patent 102 says the inventor does not get exclusive rights and cannot stop infringers but rather just gets the right to be paid a reasonable royalty if someone uses an invention claimed in a patent during the term of the patent. Patent 101 said a patent is property, a lease to the invention, and much like a land lease gives the right to exclusive use of land for a limited time. The government grants this lease in return for inventor giving the public the invention through a public disclosure of how the invention is made and not keeping it secret.The public benefits by getting the invention to use, to review, and presumably improve upon. Patent 102 says the inventor makes the disclosure and then pays a huge fee and waits years and gets a piece of paper that is very expensive and near impossible to enforce unless the owner of that paper is a big company. That is under Patent 102 big companies get strong patents and little guys get a piece of paper.


Patent 101 says that in order for a developer to obtain a patent, the work must qualify as an "invention." In this regard, the Patent Act establishes five requirements:

1. The applicant must be the inventor; 2. The invention must be "patentable subject matter"; 3. The invention must be novel; 4. The invention must be useful; and 5. The invention must not be obvious, i.e. "nonobvious."

Patent 102 changes item 1 so that if someone gets to the patent office first, and claims to be the inventor, that someone gets the patent and first and true inventor gets excluded from use of the invention unless it was already secretly in use at least a year before. That is, we encourage prematurely filed, hastily written patent disclosures of half-baked ideas, perhaps stolen from true inventors, and penalize those true inventors who to file wait until they know the invention works and can make an enabling disclosure.

THE PATENT EXAMINATIONPatent 101 said that after the application is filled-out and filed with the Patent and Trademark Office, and a small fee paid, it is assigned to an examiner. The examiner reviews the application and researches various public records to ensure that the patent requirements have been satisfied. While the examination is being conducted all of the inventor's trade secrets are maintained. Following the examination, the examiner will make a determination as to whether the work is patentable. If the patent is granted, it is presumed to be valid until successfully challenged through litigation. If it is rejected, the inventor may amend the claim and seek reconsideration. However, if the claim is rejected twice and if no agreement can be reached, then a Final Rejection is issued. The inventor must then appeal to the Patent and Trademark Office, and possibly to the federal courts.

Patent 102 says that applications require a large fee, and the larger the fee the quicker it gets processed. Patent 102 breaks the deal with the inventor and says patents are given to the public by disclosure whether or not the inventor gets anything in return.


Patent 101 said a patentee has the exclusive right to make, use, or sell the invention for a period of 14 or 17 years from when the patent issues, depending upon the type of application. During this period, an infringement will occur if someone develops, or induces another person to create a work that performs substantially the same function, in substantially the same way, to achieve substantially the same result as the patented work, or imports the invention or something only used in a patented method.

Patent 102 says patents are subject to multiple re-examinations, oppositions, and expensive court invalidation proceedings and, unless the big company manufacturer, cannot stop infringers, especially the Government, but only, if the inventor is rich enough to afford an expensive litigations, get a reasonable royalty of undetermined small amount. That is Patent 102 drives the small guy out of the system.Patent 101 said that if there is an infringement of a patent, the Patent Act allows: 1) injunctive relief, 2) damages which may be trebled; 3) attorney fees; and 4) court costs. The Patent Act authorizes damages "in no event less than a reasonable royalty for the use made of the invention by the infringer."

Patent 102 effectively eliminates injunctive relief, attorneys fee and court costs, except for increasing the legal expenses of enforcement for patent owners and delays for years any recovery. Patent 101 said that Notice of the patent is provided by marking the invention with the word "patent" or the abbreviation "pat." followed by the number of the patent and that false marking is penalized. Patent 102 effectively eliminates any penalty for false marking so that big companies with lots of patents can avoid penalties for marking items with expired patents to scare small businesses. Patent 101 said that patent protection does not begin until the actual issuance of the Letters Patent, so that competitors are basically free to copy an invention even if the application has been filed, and use of such symbols can result in fines if the notice misrepresents the truth, and if a patent is issued, then the competitors will be required to remove the infringing goods from the market.

Patent 102 says patent protection begins on the date of publication of the application provided the patent issues, which of course means suit to recover damages cannot be filed until the patent issues. Before that only warnings can be given, and fines for false marking are eliminated and actual damages must be shown in a suit which can only be filed by the one damaged, thus effectively eliminated any penalty. And reasonable royalty without injunctions available effectively avoids removal of infringing goods from the market.

In short, Patent 102, the new patent law, makes patents much less valuable for the small business and more valuable for large businesses with the aim that big businesses should be able to take inventions from small businesses without paying but small businesses should be stopped from taking inventions from big business. And certain big businesses which spent the most on lobbyists, naturally get special exemptions from the patent laws so they don't have to pay like everyone else and get priority processing of their applications.

[IMPORTANT NOTICE: Articles are for general information only. Laws vary in jurisdictions. You should not rely upon this information for your particular situation. The law in this document may not be current, and jurisdictions vary. Always consult an attorney for your particular situation.]

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