Rediscovering Patents (Part 2 of 2)

What is a patent?

Some describe it as being similar to real property, because it is a negative right or a “right to exclude” (you can read more on this topic here:

Others describe it as being different from real property, because it is an intangible asset.  An intangible asset is typically juxtaposed to a tangible asset (e.g., real property–a house, land).

But merely describing a patent as a negative right or not being tangible fails to answer the question–these answers only describe what a patent is not.

So, what is a patent?

To answer this question, let’s consider (1) the purpose of a patent, and (2) how a patent achieves that purpose.

In this post, we’ll be discussing (2) how a patent achieves its intended purpose.

If a patent’s purpose is to embody or capture the essence of a discovery, how does it exactly do that?

A patent does so by (1) qualifying that discovery into a (2) property right.

(2) Property Right

Looking at (2) first, a patent is a property right–an inventor owns her discovery via the issued patent.  You can read more about property rights here:

More specifically, a patent’s property right is carved out by its claimed subject matter, typically referred to as its “claims.”  Every U.S. issued patent lists one or more claims at the very end of it.

What is a claim?

A claim is a sentence that describes the what and how regarding a discovery.  When reading a claim, you should be able to answer what is the discovery (typically a product or process) and how it works.

Hence, a patent’s claims is the inventor’s property right to her discovery.

(2) Qualifying a Discovery

Before the government issues an inventor a property right (i.e., claim) to her discovery, the government examiner first makes a determination re what portion of the discovery is actually patentable (I’ll be describing this process in other posts).

All discoveries are built upon the foundation of prior discoveries.  It is the examiner’s job to determine the scope of your discovery and carve that out specifically for you.

As an example, if you invent a new sole for a shoe based on nano-fiber technology to provide extra comfort and durability, you may be issued a claim to that new sole (e.g., its material, shape), but you can’t have a claim to the shoe or concept-of-a-sole itself–these was already known to the public and in use long before the discovery of the new sole (we’ll go into more specifics re patentability in other posts).

Hence, every claim issued by the government is a calculated attempt to carve out discoveries already known to the public and those actually invented by the inventor.



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