How Patents Work

What was originally designed to encourage innovation by rewarding the people who create technological advances, the U.S. patent system has become a big mess. Wade into this surprisingly interesting mire to learn how to save this important institution.

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Episode Transcript

Speaker 1 (00:00):
Welcome to Stuff you Should Know Frondhouse stuff Works dot Com. Hey,
and welcome to the podcast. I'm Josh Clark. There's Charles W.
Chuck Bryant, and this is Stuff you should Know. There's
Jerry too. By the way, Jerry, he's ready for January. Me. Uh, yeah,

(00:28):
you're ready for a new year. I'm ready for this
year to be done. Yeah. I think it's been kind
of cool year. No, it's been fun. I'm just I'm tired.
I feel i'd be much more rested in It's October.
You know, we've got a little ways to go. I
know this is my favorite month too. I'm just gonna
drag you, Hippy. You're gonna start saying far out next

(00:53):
starting to it is far out, so Chuck. Yes, I'm
very curious. Do you have any patents to your name? Now? Man,
I'm not. I don't have an inventive mind. I don't either.
My brother does, and he has had some good ideas
that have later been made into inventions. Why didn't he
patent them? I don't know. Man. Every every time I

(01:14):
see a new one, I sent it to h and say, hey,
I remember when he had this idea twelve years ago. Scott. Yeah,
what are you doing? I know, Well he's got a
bunch of pinball tables, so he's doing all right. He
doesn't own the patent on them though, Um no, but
he could, you know why, because it's America, that's right.
So it turns out, chuck um and doing a little

(01:35):
bit of research, that there's mention of patents and patent
protection in the Constitution, dude, not even the Bill of Rights.
Freedom of speech isn't even mentioned in the constitutions and
the Bill of Rights, but patent protection is in the Constitution,
Article one, Section eight, clause eight, which is known as
the Intellectual Property Clause, and it says, quote, Congress shall

(01:58):
have the power ellips to promote the progress of science
and useful arts by securing, for limited times to authors
and inventors the exclusive right to their respective writings and discoveries.
And since this is the late eighteenth century, a lot
of that stuff was just like randomly capitalized, like a
sixth grader wrote it or something right, And my apologies
to all of you six grade listeners out there who

(02:20):
know your capitalization like we love proper now. So um,
it's in the Constitution. Like if you invent something that's
new and novel and cool. We think you should have
some sort of government sanctioned monopoly over that, at least
for a limited amount of time. You know why, because

(02:40):
very early on the United States said we want to
encourage uh inventiveness and forward thinking, an entrepreneurship and great ideas.
They were on board pretty early. Even though it's a
sort of a mess these days, which we'll talk about
against the end, we will. Yeah, but yeah, the whole point,
the whole purpose of a patent system and apparently every

(03:04):
it's one of the hallmarks of the m of the
modern society, I guess, is to have a patent office.
It says we value innovation, we value technological progress, artistic progress, um,
and we're going to show a commitment to that by

(03:27):
by basically saying you you have again. I guess the
best way to put it is a monopoly on your
invention for a limited amount of time. And it harkens
back um. Apparently the first patent was issued in fourteen
nine in jolly old England by King Henry the sixth,
who gave it to a guy who didn't even have

(03:48):
a last name. Well, yeah, of Utnam is not a
last name, that's where you're from. It sounds like I'm
Josh of Toledo. I'm just saying this midi evil. It's
not the sixteenth century. Uh No, it's not so. U
John of Unam got a patent from King Henry the

(04:09):
sixth for stained glass manufacturing. Yeah, back then patents in
England were it was a little bit different. It was
more like, Hey, we want to protect the crown and
our country and our good friends and our good good
friends of the Crown, and um make sure that if
they have an idea that we can go after anyone
else in any other country, even if it's something like

(04:31):
stained glass that's already clearly being done in places like Italy. Right.
It was basically like, you know, officially, are the only
person who can make stained glass. It was a bit
of a sham. Yeah, they would. They would give out
patents not just on an item or an idea or
an invention, but like a whole industry. So like this,
somebody held the patent on the publishing industry for a

(04:53):
while and apparently got out of hand because it was
just royal prerogative left and right. And yeah, it didn't
lasted that long though. The four they started to pass
statutes and laws to try and curb that abuse of power. Um,
anyway they could and make it a little more like
the patent system that we know and support today. Yeah.
They were like, the Crown can't give out patents unless

(05:16):
it's for a new invention. Yeah. So yeah, that that
is very similar to what we have today. UM. So
right off the fat, America's like new country. We're setting
up a patent office. Um. And the first person to
get a patent in the United States was one Samuel Hopkins.
Hopkins is the last name, not Samuel of Pittsburgh, Samuel Hopkins. Yeah,

(05:41):
he got a patent for, UM an improvement in making
in the making of potash? Is that potash or potash?
I don't know. I said it eight different ways in
my head earlier. Well one of those, right, yes. Um.
And so he held the first patent. Actually, the person
that reviewed his patent was a man named Thomas Jefferson. Yeah.

(06:02):
He was big on innovation, as was Lincoln. And Lincoln
is the only president to actually hold a patent. Um.
He got a boat stuck one time in the river
and said, hey, that'd be neat if we could find
a way to not get boats stuck, right, So he
devised a system to unstick boats when they were stuck
on a sandbar for the river was too shallow or something. Yeah,

(06:22):
by inflating some booie's that would just basically let you
float over. And they were like, President Lincoln, that's a
great idea. Here's your patents. Well he was a congressman
at the time, but yeah, he's the only president to
hold a patent. Uh. And then Jefferson handled the application
process for a while before passing it off to um,
you know, other cabinet members. And then eventually they're like,
you know what, we this is all out of hand.

(06:42):
We need to establish our own patent office. And they
did so a E ten o two. Yeah. I think
they grossly underestimated the number of patent applications they were
going to receive. People got their invention on. Yeah, the
first patent um that Samuel Hopkins received, UM Jefferson examined,
he saw it, he gave it to the Secretary of War,
who signed it, who then passed under the Attorney General

(07:05):
who signed it, and then President George Washington signed it.
So that wasn't a sustainable process. And then Chuck there's
like tons of millions of patents. I think like five
point seven million patents, tons of millions. Yeah, five point
seven A a ton um. Anyway, there was this notable
one that I think is kind of hilarious. Mark Twain,

(07:26):
beloved American humorist he invented. Who didn't like Mark Twain, Man,
there's a lot of twin haters. Well, he invented the
elastic brass strap. Yeah. Uh, I wonder why he invented
and improve it an adjustable and detachable straps for garments,
which he suggested to be use for pantaloons or vests

(07:47):
or other garments. But basically, if you look at it,
you're like, that's a brass strap. Yeah. I bet that
the old stot garter benefited from that idea. I would
guess so. And then one other things I wondered. He
also held two other patents, one for um Witty Banter,
a game he invented a game to help players remember

(08:08):
important historical dates. Okay, I don't think he ever saw
a dime on that one, I'm sure. And then a
self pasting scrapbook, which wouldn't become huge until the nineties.
Self pasting means I don't know, it's already sticky. Yeah,
like the photo albums, you peel back the plastic and

(08:29):
that that sheet underneath is sticky uses static electricity. No,
it's actually sticky too, wouldn't it. I think it's static.
This is sticky. I think it's sticky. I haven't looked
at a photo of a minute while. Well, I have
to have to go to uh, I don't know, the
Hallmark store and check on out soon. Let's do it. Well,
we were going anyway, so I know the new Christmas

(08:51):
tournaments are. Uh so, Chuck, let's talk patents, man. Yeah, this.
I had this idea because I'm a big fan of
Shark Town, the TV show, and there's a lot of
patent talk, and uh I was watching it the other
day and they says, well, we have the utility patent,
but not the design patent. And I was like, I
gotta look this stuff up and see what all that means.

(09:13):
And um, well, we'll get to that in a second.
But let's start out and we'll probably do shows on
maybe copyright and trademark at some point. Maybe they're still
they're worth mentioning here though. Yeah, copyright, those are all
forms of intellectual protecting your intellectual property and copyright is
the easiest and most broad and wide reaching and longest

(09:36):
lasting form because you can just write something and it's
yours automatically in the United States. Yeah, and it lasts
um for your lifetime plus seventy years. Not bad, no, um.
And literally once you, like Chuck, if you write a
short little story, you can write. When you finish, you

(09:57):
can write see put a s fill around it, Chuck Bryant,
two thousand fourteen. And you have your official copyright. That's right, Like,
that's it legally. You you're done just because you created
a work of authorship. And that's pretty great. If you're
a company and you've done, have a copyright as a

(10:18):
company at last um up to a hundred and twenty years,
depending on whether they publish it or not. Um. Yes,
but that's uh. Eventually it does run out and then
it can be shared and other people can make money
off of it, like for example, old um HP Lovecraft stories.
Like you or I could take a bunch of love

(10:38):
Craft stories. UM, let's say we wrote them, type them,
put them together, and publish them and sell those books.
Really like a collection that you don't have to get
any kind of permission for that. Nope, it's in the
public domain at that point, belong to the world. That's right. Well,
we read every Halloween. We have to read something from
the public domain, I know, because it's really expensive to

(10:59):
do weatherwise, it is. Trademarks are a little bit different.
They're a lot more narrow and what they protect, and
they protect designs and phrases that businesses use, or maybe
trade secrets like a formula for a soda. Those are different.
That's its own thing. Yeah, but that's still a trademark,

(11:20):
is it. Yeah. I thought it was separate from a trademark.
M M. I don't think so. So with a trade
says it's a trademark trade secret. Well with the trade secret, um,
it's actually uh, it can be beneficial to keep something
under wraps as a trade secret because if you have
something that you patent, you're protected for twenty years in
the United States, your patent is but part of the

(11:42):
patent processes we'll talk about is to publish it. You
make it every detail of it public. So then after
twenty years, when your patent runs out, anybody can go
and look at your patent and recreate it and not
give you a cent for it if it's a trade secret,
as long as no one discovers the the says secret
formula for Coke by accident or by being this American

(12:04):
Life and rooting it out right, and uh and then yes,
so like Coke could sue This American Life for damages.
But once it's out in the public, like, it's no
longer a trade secret and other people can use it legally. Uh.
The the other way you can do it is to
take Coke and reverse engineer it and come up with
the formula successfully that way that's not protected by trade secrets.

(12:28):
But then, uh, I think Coke diffused that well though
they were kind of like great, good luck. Yeah, supposedly
they keep it in a bank in a bank vault
here in Atlanta. Yeah, like you. Um. And then the
last one is a service mark, which is like a
trademark for a company that provides services rather than products.
So like if you're a plumber, you might have sm

(12:52):
next to your your logo. Those are the different types
of intellectual property protection protections afforded in the United States, Chuck.
But the final one, and the one we're discussing that length,
is the patent, and that is a copyright for an invention,
and the US patent law uh defines that is, quote

(13:12):
any new and useful process, machine manufacturer, or composition of matter,
or any new idea and useful improvement thereof and quote
and that is Uh. Well, we'll get into all that.
But the wording there is sufficiently vague and specific, because
when you're talking about inventions, it's got to be a

(13:32):
little bit vague. Yeah, because you don't have it all
worked out. Maybe no, because with the copyright, for example,
what you wrote down is is protected, right, the sentence structure,
the paragraphs you use, the wording you used, that's protected.
The thoughts that it's getting across about the little puppy
who got lost and came back home and everything ended

(13:54):
really well, like you, you're the idea of a puppy
getting lost can't be copyrighted with a patent. It's the reverse,
like the actual invention, like the platform shoe with the
goldfish tank and the heel that you invented, right, the
you can't defend that actual tangible shoe, but the idea,

(14:17):
the design of that shoe, that's what a patent protects. Yeah,
and you can't steal it. Gets a little tricky with
things like writing or like movie ideas. You can't steal
someone's idea. Um, like, there could be two movies about
lost puppies. But if you could somehow prove that you
met someone in a meeting and pitched him this idea

(14:37):
for the Lost Puppy, and then six months later they
came out with a script for Lost Puppy, you might
have a case that they I don't know, man Um, Okay,
but think about Deep Impact and Armageddon. Let's go back
to that. Well, well, now I know that's what I'm saying.
You can have two movies. There their lawsuits every day
filed on Hollywood over stolen intellectual ideas. But um, whether

(15:01):
or not successful is whether or not you can make
your case. You know, it depends upon each one. That's
a good point. So the first thing if you want
to patent an invention is that you have to uh well,
it has to be sufficiently novel, is what they say.
So it can't be uh, I mean, it can be
similar to other things, but it has to be different
enough to something that's already patented or been published in

(15:24):
a publication to grant the patent. Yeah, because if this
that's a really key point if if the even if
you invented something right, Um, and let's say you wrote
about your platform few with the goldfish tank in the heel, right,
if you wrote about it and don't file a patent
application if it was published, yes, within a year, Um,

(15:47):
you you can't file a patent after that. Yeah, that's
why the first thing you need to do is file
the patent. Like no one invents something and writes all
about it in the Washington Post for a year and
it's just maybe I should patent this. So that's that's
your first step. And so that's and that's that's what
makes a novel. It's new. It's a different idea. And
like you said, you can be taking different things that

(16:09):
already exist but putting them together in a new way
that people hadn't thought of or that wasn't what's called
um obvious. So the the invention also has to be
non obvious. Yeah, and that's what most inventions these days
are our improvements on things that already exists. Like there
are new inventions, but a lot of it Like the
great example they use in nineteen seventy seven when Jerome

(16:32):
Lemelson invented or got patented the idea of the cam qorder.
It was so absurd at the time. People were like,
you hit recorded video and sound at the same time.
Just that's denied. That's just silly. Get out of here.
And he said, actually, now that's kind of a good
idea and it's super easy to do because I'll have
to do is tape the tape recorder to this camera,

(16:54):
which is probably what he did. And uh, he was
able to get the cam chord patented. Of course, Now
if you go to the patent office and do some research,
there probably thousands of patents that have to do with
the cam quorter. Each individual little piece that someone innovates,
they can patent, like night vision on it or a
light attached to it, right exactly. But you couldn't say,

(17:17):
I'm gonna patent a cam quorder this other guy's cam
quorder idea, but it'll be green because it's an obvious change.
Or this article gives the example of like a toaster,
Like you couldn't patent a toaster that has an extra
two slots for bread because anybody could think of that, exactly.
It's that's obvious, that's no obvious. It's just a bigger toaster.

(17:39):
And then there's also useful um useful as kind of
the last of the triumvirate for what makes a patentable
item or invention, and like it has to be something
that works. So like the example given in this article
is like, you couldn't patent random configuration of gears because
it doesn't do anything, It doesn't work, it's not useful.

(18:02):
But if those gears transported, uh, you know, it's a
new way of transporting something from one place to another
more efficiently maybe than you could patentable patentable um. And
then in the same vein something that apparently the patent
office interprets something that can be used strictly for immoral purposes,

(18:22):
that they consider that non useful because at the end
of the day, the patent office is supposed to be
doing this for the benefit of society, so I guess
they feel that they also can morally interpret things as well. Yeah,
what is that? Like, you can't patent like a whiskey
still like in your bedroom? No, I no, no, I don't.
I wouldn't. I think it'd be more harmful than that.
Like like maybe um, a doomsday laser that only works

(18:46):
on children who haven't done anything to anybody. But the
doomsday laser for bad kids is great. You see my
point patentable, That was a great example if you asked me.
And then similarly, your device has to be able to
be to not just work. Like, yes, you could say, well,

(19:09):
this random configuration of gears will work. Why can't I
patent it? It's because it's not useful in the In
the same vein, you can't patent like a time machine. Again,
the example they give this this article is lousy with
great examples. Yeah, like we we tried actually to get
our way back machine patented and they said, guys, that's
real cute. They're like, that's basically just sound design. Thanks

(19:30):
for wasting your time. We could probably trademark it though,
although I'm sure the good people who made Rocky and
bowl Winkle would sewer. Yeah. Yeah, so ourselves the patent
in the United States, and I apologize that this is
not patents all around the world, but we don't have
like eighty hours because we search each country. Again, any

(19:51):
any modern developed country typically has a patent system. Yeah,
and good advice. If you have something that you think
could be used internationally, you need to get patents in
all the countries you fear might rip it off, right,
because you're your patent that you've received in the United
States protects you in the United States, not Canada, not Japan,

(20:13):
not Mexico, not China, not anywhere for twenty years, right
these days, that's a long your patent will last. That's right, Chuck.
Um it used to be seventeen and I can't remember
when they changed it, but it wasn't too terribly long ago,
within the last couple of decades, I think. Yeah. And actually, um, well,
we'll go over the types of the patent real quick too,
because one of those, the design patent, is only for

(20:35):
fourteen years unless that's changed. Design patent. You'll hear that
on shark Tank all the time. Uh. That is something
like if you designed a new chair like an ikea
chair that would be design patented. You can't go and
rip off that chair. Oh, but the the idea of
a chair itself isn't patentable. It's just this configuration of

(20:56):
the chair concept, right. Or Steve Madden will just in
a shoe and Steve Madden can put a design patent
on that shoe even though it's a shoe. You can
even patent the sole of a shoe, if it's some
innovative new tread tread or for like a tire or
that channels water away or something like that exactly. Um,
I don't think those are designed patents though. I think

(21:18):
that would be a utility patent, but design patents are
enforced for fourteen years. Utility patent um that is, there
are five categories there. It can be a process, a machine,
a manufacturer, a composition of matter, or an improvement on
an existing idea and it might fall into a certain
category like more than one, but it'll only be patented

(21:41):
for one of those categories, but it's covered and that
lasts for twenty years. So basically you're like the coffee
maker that also makes an egg and toast at the
same time. That would have gotten a utility pattern right,
uh yeah, does that exist? Yeah? Emily said. The best
eggs she ever had was it a cafe in Utah

(22:03):
where they um cook them using a like what you
used to heat the milk, like that sprays out the steam.
They were steam cooked. Weird. Yeah, Like to make an espresso,
they will put the raw egg like as if you
would make an espresso and cook the eggs with that steam.
I've never heard of that. I've never heard that either. Um.
And then there's the super Weird Plant patent, and that

(22:28):
is granted for any a sexually or sexually reproducible plant
or flour that is novel and non obvious. Yeah, that's
that's kind of a big one because there was and
in Australia it's this is the way it is. But
in the US it was up in the air for
a little bit that people were worried that like naturally
occurring genetic sequences could be patented. So we're basically some

(22:51):
company could be like, hey, we now own your jeans
and you can't do anything with them, even to save
your own life unless you pay us. In in Australia
they're one of their federal courts said yeah, like we're
totally down with that, which is crazy. In the United States,
I think in two thousand and fourteen, the Supreme Courts

(23:12):
and yeah, we're not doing that. You you can patent
um if you can figure out how to manipulate jeans
to make them do something that doesn't naturally occur, knock
yourself out totally patent that. Like for example, mont Satto's
seeds that um, that prevent themselves from receding or creating
more seeds. Yeah, or some new strain of tree that's

(23:35):
hardy against what some kind of insect. You can patent that, right,
But you can't just go out and patent an oak
tree or a human gene. No. You can in Australia,
which you should not be allowed to do, but in
the US you can't do that. And that was a
big load off off. I think a lot of people's minds,
including mine. Uh, well, that's good. I'm glad you can

(23:57):
sleep tonight. I'm feeling great. Plant patents are good for
any years as well. So I don't know why I
designed pats are only fourteen, but you know, maybe they
just want to encourage more to values design like they should.
That's the problem. Uh. As far as we mentioned Jerome Lemelson,
and as far as inventors go, he ranks second to
Thomas Edison a number of patents in US history, not

(24:21):
necessarily a number of inventions, though a lot of people
would point out, Yeah, he's a pretty controversial guy. Some
people see him as a philanthropic genius. I'm talking about Edison,
Oh don't know, I was talking about Limelson. Yeah, he is.
He's controversial himself too, Yeah, because he um has accused
a lot of people of creating what's called submarine patents,
which are it's basically a patent that you sit on

(24:45):
even and knowing that there's something just like that being developed,
and you don't let anyone know, and you just hope
it doesn't get their attention, and then later on when
it's huge, you come out and say, hey, you owe
me a ton of money because I have this seventeen
year old patent. Now this, this Lemilson is basically what
you're talking about is a form of patent trolling. And

(25:05):
that's he does definitely stand accused of that, or we
should say his foundation stands accused of that. Um But
Samuel Lemonson had was um in controvertibly a genius inventor
who definitely did come up with a lot of really
great ideas, things like the cam quarter, things like bar

(25:27):
code scanning, like just like basically the modern world. A
lot of it came out of Lemilson's head. Jerry Lemilson's head, right,
But you are right. His foundation has racked up like
a billion dollars in licensing fees and court awards from
these kind of these kind of lawsuits and litigations until

(25:48):
they ran up against one where it was like I
think a bar code scanning case. A couple of them
got put together and then they were added onto like
seven others, and the judge in the case found that
they basically this even though there isn't necessarily statute of limitations,
a reasonable statute of limitations, they've run out on the

(26:09):
time between when barcode scanners came out and the time
they filed the lawsuits. And they used the term submarine
patents in this article and said time's basically run out.
These things belong to the world now, and you know,
sorryle Wilson Foundation, you're not gonna get this money. Interesting. Uh,

(26:29):
there was something past called TRIPS Agreement Agreement on Trade
Related Aspects of Intellectual Property rights, and that was supposed
to kind of curb submarine patents. But they'll still pop
up every now and then. I think I think TVOW
reared their head. I think I saw something about that.
I know the details though, with a submarine patent saying hey,

(26:52):
everyone with a Comcast DVR, we actually invented that whole technology.
Oh yeah, yeah, I'm not sure how that all panned out,
though I didn't get to look into it any further.
But it's interesting. Well let's keep at it, but we'll
start again right after these messages. Okay, So Chuck, Yeah,

(27:19):
do you want to talk about Edison? So yeah, I said,
lem Jerome Lemelson was number two with five hundred and
fifty seven patents held in the US, but Edison eclipses
that with one thousand, ninety three patents. Uh. And he
had a set up in Menlo Park, New Jersey that
was just like a the idea factory basically, which ironically

(27:40):
is unrelated to the Menlo Park US Patent and Trade
Office out in California. Oh really yeah, it was just
coincidentally named from what I understand. Interesting. Uh, I never
do that connection. Um. He when he set up the
Menlo Park, he hired a bunch of like really bright
people and said, come up with one small invention every

(28:02):
ten days, one major invention every six months, and I'll
put my name on all of them, exactly. And if
if the your hackles are raised right now, go back
and listen to our Nicola Tesla episode, which is a
good one. Edison was a smart guy in many ways.
He was quite a good promoter, like the lightbulb. He's
frequently credited with inventing the light bulb. A lot of

(28:24):
purests will point out, like, no, he didn't really invent
the light bulb. He took a lot of other innovations
that were incandescent light related and he figured out how
to put them together into what we understand now is
the light bulb. Well, yeah, but that's an invention. Yea.
He went and got the patent, and now everybody says
Edison invented the light bulb because uh, and I like

(28:45):
that too, because you know, that's the kind of the
whole point of patents is this stuff is available to
the public to look up. And that was one of
the original reasons they made it public is so people
could look up other people's ideas and build upon that, right.
You know, that's one that's one mark in the favor
of patent offices in the patent system in general, is

(29:06):
that it's a way to disseminate scientific information and encourage
growth and uh, you know, inventiveness, right, And the way
with the way it does that is by offering an
incentive for inventors to invent. Because that can be a
very long, arduous, heartbreaking experience inventing. And if you're gonna
do that and go to all the work of research
and development and then right when you come up with it,

(29:29):
somebody can just come along and mass produce it, then
you're you're not gonna have any incentive to invent anything.
You're just gonna go off and like work on a
road crew or something instead, because it's probably a lot
more satisfying at the end of the day. Yeah, and
you can't just go to the government and say, hey,
they you need to look into this guy. They stole

(29:49):
my idea that I have patented. The government would be like,
I don't care. Well, they may care that's at callous,
but they say that's not our job. You can go
and take someone court if you want to challenge this.
But there's no government agency that like patrols the patents infringements. No,
it's up to the patent holder to to monitor and

(30:10):
police their own patents, which they are big on. So
let's talk about the courts a little bit. Um. It's
like twenty years ago, if you had held a patent
and you took someone to court for infringement, the courts
typically sided with the infringer. There was a I guess
kind of either a thought that you are stifling innovation

(30:34):
if you're just kind of suing people over patent infringement,
you know, or else they just didn't view patents like
they do today. Nowadays, it's going to the other extreme,
where the court's rule in favor of the patent holders
so frequently that a cottage industry of what are known
as patent trolls sprang up, where you have groups of

(30:55):
people or companies or individuals who just go around either
applying for pat that are really abstract and really shouldn't
have been approved, very vaguely written, right. Uh. And they're
typically software related too, because I think there's a sentiment
that the the U. S. Patent Office it doesn't fully
grasp software and the Internet and I T and that

(31:18):
kind of stuff. Um, So you either going and file
for and get a patent on something really overly broad
and vague, or you buy a bunch of other people's
patents and you just start for the whole purpose of
going to people and saying you're infringing on these patents
that I now own, give me some money, I'm gonna

(31:39):
take you to court. It's a business unto itself, it
is um. The problem is because the courts moved so
far in favor of patent holders that people would sell
settle out of court to avoid litigation. And so as
a result this, this whole cottage industry came up. And
then recently there's been some steps taken to kind of
reform that a little bit. There was something called the

(32:00):
Innovation Act. The Innovation Act past the House, was sent
to the Senate, it was in the Senate Judiciary Committee,
and then Senator Patrick Lahey killed it, and the tech community,
who's really big into patent reforms, um accused him of
being in the pocket of the pharmaceutical companies that would
never happen in this country, who are really big into

(32:24):
preserving the status quo. And if you really look at
what's going on with patent reform today in this argument, Chuck,
you've got the pharmaceutical companies versus the tech industry. Tech
industry is like things are moving so fast and there's
so many ideas coming out that we don't like, we
can't focus on patent infringement. It shouldn't be as big
of a deal because it's stifling innovation. There's people here

(32:46):
that are scaring people from you know, licensing computer software
because this guy says that he has a patent that um,
you could says you could put software onto a CD
raw and and and sell it right that you know,
that's the kind of patentrol thing. On the other side,
the pharmaceutical companies say, hey, man, we make tons of

(33:09):
money licensing our patents, and so if people are afraid
of infringing on patents because they can get sued, then
our investments are portfolio patents are going to be protected.
So there's a huge behemoth lobbies like hammering it out
right now in in the halls of Congress, and it

(33:30):
seems like the Supreme Court in the federal government are
siding on the tech side. Yeah. They You sent that
great article from Forbes about just the problems with the
modern patent system, and that was one of the great
points that I can't remember who wrote the article. The
guy who found a priceline, Jay Walker. Really yeah, he
said that, you know, people are so scared companies are
these days of infringing on patents because if you can

(33:52):
prove that you knew about this patent, then you could
be in big trouble. So they're not even looking, which
is the original idea of making these things published is
like I said earlier, so people would go and look
up how someone did something. Maybe I can improve upon that. Right,
So people aren't even looking now because they're afraid that
they will be it'll be traced back and be like no, no, no,
we know that you saw this, this patent pulled three

(34:14):
years ago. Yeah, because the penalties for accidental infringement and
willful infringement are vastly different, it's a big problem. Well,
the the jay Walker suggests that you kind of cut
the courts out and maybe make some sort of make
it easier to license things. So we just create some
big national exchange where somebody can go and easily give

(34:37):
somebody some money or temporarily licensed whatever they need. And
he cites some um, I think a forest research study
that suggests of the five point seven million patents that
the US is granted, two point one active patents okay
go unused and unlicensed, and of those, approximately half a

(34:59):
milli in are considered to be like high quality patents.
They're just a lot of them are from university research. Uh,
and they just sit there, Yeah, and so protected the
same The same study found that like one trillion dollars
of revenue is not generated each year in the United
States because of this unused innovation that's just sitting there

(35:22):
in this this um in this big pot. Yeah, a
big guarded vault with a pot in it of unused ideas. Yeah,
which definitely goes against the spirit of the original idea
for you know, Yeah, which means the system is broken.
It is broken. The other way that it's broken, too,
is the enormous backlog that's going on at the Patent

(35:43):
and Trade Office, oh with just getting it reviewed. And yeah,
so if you file a patent, and we're going to
talk about this in a minute, but um, if you
file a patent, chuck and they rejected, that is not
the end of the story. You can keep coming back
and back and back and back. In fact, you usually
will get rejected on the first try for one reason

(36:04):
or another. Right, But every time you come back, you
add to the PTOs already big backlog. Right. And so
apparently there's another another study that Ours Technica wrote about
or carried out that that found that there was a
huge decrease in the backlog under the Obama administration. But
they suspect that it was because the PTO lowered their

(36:28):
standards and issued patents for a lot of shoddy patents
just to get people to go away to clear the backlog,
because that's the best way to get rid of somebody
who keeps refiling their patent is to just grain them
the patent and get them out of your hair. Well,
they're saying, yeah, that decreased the backlog, but it led
to a lot of shoddy patents, which in turn led
to the patentrol industry. Yeah, and a lot more burden

(36:51):
on the courts to suss all this stuff out later. Exactly.
The problem is the Patent Office has an incentive to
keep letting people file and file again because they make
money every time they generate revenue from that. Yeah, it
cost I mean, the actual patent itself will cost you
five or so that you have to keep every year

(37:12):
and pay a little bit more maintenance fees. Uh, well,
it depends. Have you seen the feat schedule. Yeah, there's
like thirty or forty different things you could pay fees for. Well, yeah,
it all depends on what how detailed your patent is
and what you're trying to get through. Um, all right, Well,
let's talk about what you can and can patent. We
talked a little bit about it um. You cannot patent

(37:36):
something that is exists in the natural world, like a discovery.
Like they give another great example Einstein's law of relativity.
He can't copyright that or patented. I mean, it's it's
a thing, and he might have named it and figured
it out, but it occurred long before Einstein was around,
just in the solar system. It kind of it belongs

(37:57):
to the universe. It belongs to the universe. It's good
ways in it um. You can patent like an industrial process,
like we said computer programs, you can, but it gets
a little dicey um. And you know, if you if
you have something that you think might be patentable, patentable,
patentable or not, what you the first step you probably

(38:19):
should is like higher in either an agent or an attorney,
an agent or a patent attorney. Yeah, and a lot
of people do. And this is if you're like serious
about this stuff, like you really think you're onto something.
This is something you do not just say you got
this idea for a thing. Uh, You're not gonna want
to spend thousands and thousands of dollars unless you really
think you're onto something, right, So the first step you

(38:39):
want to talk about the steps of pattenting something, Yeah,
I guess the first step you can do is to
do is search yourself. Um. I think Google even has
a search function to search patents in the United States,
um easily. But if not, you can definitely go to
the U S. Patent Office site and search you some
keywords to kind of generally describe what your invention is.
Did just see off the bat if there's already something

(39:02):
out there that's patented, and there probably is. It's very
rare to have a truly truly unique idea these days.
But if you have something and you're like, like the
guy who made the thermonuclear fusion reactor in his garage
is sixteen year old, if he wanted to patent that,
there's probably a pretty good likelihood that he could get
that patent, and then it's gonna be worth a ton

(39:23):
of money. So we're gonna take that kid and run
him through the patent process because it's gonna pay off
for him and the end, despite the enormous amount of
money that he's gonna have to spend up front to
just to get the patent protection in the United States, right,
So he searched the database. Let's say he went to
the office in person, because that's what kind of kid
he is, and he looked through the files and he

(39:44):
found you know what, I think, I'm onto something. I
don't see anything else in here that's super like it.
I feel like it's novel and it's innovative, and it's
not obvious and so um, but it's there's a lot
of money on the line here, So I'm gonna hire
a patent lawyer who Um, patent agents aren't attorneys. They
function similarly, but an attorney obviously has a little more

(40:08):
power under their belts. Well, they have a technical degree
typically and a law degree, so they understande. It just
knows about the patents. They don't have the law degree.
They have the technical expertise because you have to be
able to look at the the actual invention and understand
how it works or if somebody's just trying to pass
off something dumb like you're you're not a divorce attorney

(40:31):
and a patent attorney. You might be, but probably sure
there's probably one out there. So um, a patent lawyer
will review everything and say, yet, I think you are
onto something here with your garage nuclear fusion reactor. Kid,
You're you're a heck of an inventor, and I think

(40:53):
we can take this right through the roof. So who's
this guy? He's you know, the kids stays in the pick.
What's the guy, the producer, legendary producer, the guy. Yeah,
Robert Evans, that's who. That's who this attorney is. Yeah, Okay,
we're getting this nail man, like we're really filling it
out with Although Lionel Huts or I'm sorry, Robert Evans

(41:17):
may say, you know there is a patent here, don't
waste your time. Um, it's up to you. But like
it's really similar in these ways, or maybe hey, this
thing is super similar, but this actual process within your
patent that you're applying for is super unique. So maybe
you should just focus on that, right, and then you
can license it to the person who's already got the
patent exactly. Uh. And then that's the point where the

(41:39):
kids is all right, I want to move forward on
this smaller part or the original patent, and I want
to fill out my application like anything else. That's the
first step, as you have to fill out that application
and send it in with some money, with some money
depending on you have to pay that front, right, it's
for the for the application fee. Yeah yeah yeah um.
And then after at that moment, once you file your

(42:03):
application fee, your patent starts, so that twenty year protection
that doesn't kick in when your patent is granted, like,
it kicks in from the date you filed your application,
so you can go out and put patent pending on
your thermonuclear fusion reactor and start selling it to people.
That's right. In your application, you you kind of have

(42:26):
to spell it all out for him. You can't just
throw your idea in there and say, you guys, do
the research and see if there's anything else out there.
You have to list any kind of um potential roadblocks
and prior art that may be similar for them to review.
You have to briefly summarize your invention. You have to
give a description of what they call the preferred embodiment,

(42:47):
which means how are you going to use this thing basically, yeah,
or like what shape is it supposed to take? How
do the components fit in together? Uh? And then your claims,
which are this is the most important part um and
this is what you're actually gonna be arguing about in
court if you have to go that route, because your claim,
and that is the actual legal description of your invention, right,

(43:12):
and uh, if your claim is very well written, if
you spring for a great lawyer Robert Evans, this, this
claim is going to be very well written, very concise,
very um descriptive and so, but also sufficiently vague. Sure
you know, because when you do take somebody to court
and you say, this guy has totally ripped me off.

(43:34):
Here's my patent, here's the description of what my thing does. Now,
look at what this guy is doing. It's the exact
same thing that my patent lawyer described years ago when
I filed my patent application. So the claim is extremely important.
I mean like it's it's basically it's as important as
getting the patent itself. Yeah, yeah, totally. Um, how much

(43:56):
you're gonna pay that attorney all depends, of course on
how many hours they in. But they put in this
article between five thousand and twenty thousand dollars. Yeah, I
saw more than that. I'm sure it can get up
to as much as you know. I'm sure corporations pay
these people a lot of money. Yeah, Well, the patent
office actually has a sliding scale of um fee feet schedules.

(44:17):
So like, if you are a micro entity I think,
which is like just probably one guy, you're you're an inventor,
you're gonna pay the least. If you're a corporation, you're
gonna pay the most. And that's for the patent fees,
not the attorney's fees, right, they don't care about those. No,
But if you're a corporation and you have a lot
of like a large patent portfolio, and you have an

(44:38):
R and D company, you have a patent attorney, a
stable of patent sordies who are working on that anyway,
they have their own office in your building. But I saw,
for a in a two thousand five article, I saw
a a study had found that for a small size business,
so probably the middle slot of the schedule fee UM,

(45:01):
it would cost about three thousand dollars to get and
maintain patents in ten industrialized countries. So I mean, like,
if you've got a thermonuclear fusion reactor and it works,
it's gonna totally be worth that you want to patent
it everywhere you can possibly do that because you're going

(45:22):
to make you're you're going to change the world with it,
and probably as many sub patents as you can create.
If you are kind of shaky on your idea or
you don't think it's gonna end up paying off that much,
then who knows. Maybe a high flute and patent attorney
isn't the way to go, but maybe you go the

(45:42):
route of like a UM inventors help group, Like there's
actually one called invent help, and some of those some
of those things are scams. I looked up invent help.
It appears to be totally legitimate. It's got an a
minus rating on the Better Business Bureau. UM. You have
you ever watched like daytime television? They're like inventors, do

(46:02):
you want to help get your invention to market? They
do every every step of the way, Like you submit
your invention. I think they help you get it patented,
to help you market it. They may set up a
website to sell it on TV. Yes, they get a
piece of the revenue down the street, down the line,
or they may also require fees along the way. UM,

(46:25):
but some of them are kind of scammy. Apparently invent
help is not UM. And then another good resource for
you if you're an inventor of limited means would probably
be to get to the Lemmelson Foundation that was established
by that inventor, Jerome Lemelson, who spent most of his
career suing companies that we're using his patented stuff. Um.

(46:48):
They I think it's called Lemlson Foundation dot org. They
have a bunch of programs to help inventors, especially young inventors.
It's a good place to start. I would think, all right,
we're gonna finish up on how to finish up the
patent process and a few more critiques right after this. Alright,
so this kid has has turned his idea into the
patent office. Um, like we said earlier, it has a

(47:11):
pretty good chance of getting rejected on the first pass,
and they will tell you exactly why, and then it's
up to you whether or not you want to redo
it or just bail on it altogether, or you know,
like I said, redo it and resubmitt it and see
how your luck runs. Right, And the reasons for rejection
can be myriad, you know, like literally thirty thousand different reasons. So, uh,

(47:38):
it can be something from the patent office saying like
we think that this is way too close to another
already patent invention. We don't think it's necessarily an improvement.
It's not useful. These are the very high level reasons
they can be rejected. If that happens, then you might
want to go back to the drawing board more frequently.

(47:58):
I think it's like, we think the wording in your
claim is a little too vague. We don't quite understand
the description. Can you make these changes to this paragraph
you're drawing is missing a label like the the patent
is supposed to be flawless, well written, the like. If
you hire a patent attorney, they're going to hire an
artist to do the drawing for that's submitted to the

(48:20):
patent office. Um, so it's like really supposed to be
professional and well done and so like for any minute
technical detail, they can reject it, but then they'll also
explain why, and then you can just make the change
in refile. Um. If it's something that's just kind of
open new interpretation. If you have a patent attorney, your
patent attorney can be like, let's negotiate this point and

(48:45):
hopefully get the whole thing passed through. I wonder if
you have to go back to the back of the
line or if you have a new phone number you
can call I don't know for like, you know, man,
that's the key, isn't it. You get that that secret
phone number to the person who actually picks up the
first time, and you can be like, please help me. Yeah, Um,

(49:05):
I don't think one thing we did mention if you uh?
And it gets really dicey if you work for a
company and you have an invention as an employee of
that company. Um, there have been countless hinky situations. I
remember the one They made the movie about the guy
who um invented the delayed winshield wiper? Is that a

(49:29):
documentary that's out on Netflix? There probably is, But I
think what's his face? The guy from As Good as
It Gets? Um. I didn't see the movie though, but
I think that was a case of someone who works
for a or work for a company, or maybe he
didn't work for a company. Maybe he just presented it

(49:50):
to car companies and he thinks they ripped him off.
But if you work for a company, you might get
the patent, but the company might still own the product
or the process that you invented, you know, because you
did it as their employee. Under their purview, but you
might still get a personal patent for it, but maybe

(50:11):
you might not benefit like you would as a as
a private person. No, And basically, if you're an inventor,
good luck getting a contract with the Corporation of the
United States where you don't automatically sign over every bit
of your invention to that company. Or if you are
if you create anything creative, you are probably have a
work for higher contract where all of your work that

(50:33):
you write or draw, or design or compose automatically belongs
to the company. So the ironic thing is is like
you are technically the creator of that work or that invention,
but if you go and republish it like on your
own personal website, you're infringing on this copy right right,
Um that your your company owns, and your company can

(50:56):
sue you to get you to stop or to do whatever. Um.
And that's a big critique of the patent system too,
is that there's not a lot that the Patent and
Trade Office can do about it. But just the way
the system works right now, corporations have all of the
power as far as patents go. Yeah, that's it's such
a tough thing. I mean, you hear they're just countless

(51:17):
stories from history of so and so invented this this
thing that we all use, but they never made a
penny off of it because they did it for IBM,
or like the guys who invented Superman. They were paid
like a hundred and fifty or three hundred bucks by
d C, and UM basically told thanks a lot. And
over the years of DC made tens and tens and

(51:38):
hundreds of millions of dollars off of Superman. These guys
are like, like, this isn't right. And finally, after there
was enough outcry, they were granted like some some back
revenue they got. Do you remember our Christmas extravaganza from
last year? The guy who composed Rudolph the Red Nose
Reindeer for Montgomery Ward and hit on hard times and

(51:59):
the president of Montgomery Ward granted him the copyright to
root off the red nosed Reindeer. That doesn't happen. Yeah,
And that's that's a copyright, not a patenter and invention.
It's I see both sides a little bit. You know.
I always think that corporations are the ones taking advantage.
But if you work for IBM and you have they
have given you the resources and paid you money to

(52:22):
do this. Then that's you know, quit your job and
go invent something on your own. Then you know, yeah,
um so a kind of see both sides, But generally
I think corporations probably sticking it to the man. So,
speaking of corporations sticking it to the man or humanity
in general, UM is of the pharmaceutical industry again, so

(52:44):
I said that they're they're very happy with um the
status quo. And one of the great criticisms of the
patent system now as it is is you can get
a patent. You can buy a patent and just sit
on it, like you can buy a patent, say from
a competitor or from somebody who may be a competitor
down the road and prevent them from making it. Even

(53:07):
if this thing benefits humanity, even if it literally saves
people's lives, you can you can sit on a patent.
And apparently drug companies have been known to do that.
There was one famous um uh case with a company
called am Gin and they developed an anemia drug that
treated anemia and iron deficiency and it worked really well. Um.

(53:30):
The problem is like the body absorbed it really quick,
so you had to take large doses for your whole life.
Apparently this researchers chemist found a way to make the
drug longer lasting, which, in am Gen's mind meant while
we can't make as much money off of it. So
this lady was like, can I just see your patents
and I can figure out a way to to latch

(53:52):
this onto your drug and save lives. And Anteon was like,
we're not gonna let you see our our material reels
are researched. We don't want to make that better man.
But so that and that's that's not as overt as
buying a patent sitting on it to keep people from
doing it. But that does happen like it's a it's
a it's a it's a competitive way to navigate the

(54:17):
business climate. Well, put to Josh, you've worked your way
around that one very nicely. Oh I got something here.
Um if you it might take like a year to
five years to get this patent um from pending two approved.
And let's say you put in an idea very similar

(54:38):
to someone else around the same time. That happens all
the time. If that happens, they declare and what they
call an interference, a dance off a dance off exactly,
and they have to actually have a little trial. Um,
a little trial like they serve tea and everything's a miniature,
everything small. Um, they have a trial. They basically figure

(55:01):
out who got there first. Yeah, there's a very famous
case of um Alexander Graham Bell and Elijah Gray Um
basically putting in a patent for the telephone at the
same time. And I guess for a long time it
was whoever could prove they invented it first in the
United States was the one who got the patent. And

(55:22):
then I just to simplify things, in March of two,
the US changed its patent law. So now the first
inventor to file is the one who receives the patent. Right,
so even if it's by a minute, whoever got it
there first is the one who gets the patent. That's
why filing that patent right away is uh is your

(55:43):
best defense? Like go now, stop, press pause and do
it right now. Seriously if you haven't invention. Um, I
just got one more thing on the the old the
infamous poor man's patent or poor man's copyright. Sure everyone's heard,
Like all you gotta do is write it out and
mail it to yourself. I think I suggested that on
this this this show before, didn't you remember? I don't

(56:05):
remember that. But that is just an old wives tale
that's not going to hold up in court. It's basically worthless.
But I don't understand why if like right when you
create the work, it automatically is copyrighted, why would that,
like dating it not make it not just substantiated even
more Well not, I'm not talking about writing a book.

(56:28):
I'm talking about Hey, I'm I did this invention, and
here's the schematic, and I'm gonna man. Okay, So it
could work for something copyrighted, but not a patent. Well no,
I mean if it's if it's just an original work
of art you've created, like a book, then like it said,
it's already copyrighted, so that doesn't even apply. Okay. So
but if you invented something in designed and dismail this

(56:49):
to yourself, it's worthless. Basically you can't prove like envelopes
can be steamed open and manipulated, like, that's not gonna
hold up in court. You can do it if you want,
sure to take it to court. And so I have
an extra stamp that I don't know what to do
with that's right. Uh, let's see you got anything else
if you want to learn more about patents. Uh, it's

(57:10):
actually surprisingly interesting stuff. Um you can type that word
in the search part how stuff works dot com. And
since I said that, it's time for a listener mail,
I'm gonna call this. Thanks for the panic attack episode.
Oh I'm glad, they said episode. We've got a lot
of great feedback. I think this touched a lot of

(57:31):
people because they're way more common than you think. Um, Hey, guys,
love the episode on panic attacks. I had them in college,
brought on by normal college stress plus the loss of
a beloved uncle. I would often wake up in the
night standing in the hall of my dorm, feeling like
I could not breathe. Sometimes I would be awake enough
to think I'm dying. I just need to get the
hallway so someone will find me or my body. Sometimes

(57:52):
I would just wake up screaming. What helped and the
reason I'm writing was some wonderful therapy offered through my
university's health services, along with some antidepressants. In the support
of my family and friends, I learned coping mechanisms to
get me through my anxiety, how to express my stress
so I wasn't bottling at all up inside, and the
importance of taking time to rest my mind and body.

(58:13):
With all the help, I was able to leave therapy
after a few semesters, was able to recognize that I
needed it again later and graduate school after the birth
and my second year my much love but very unplanned child.
I urge all college students, graduate and undergrad to really
take advantage of their mental health services that are offered
to them. For me, as a student at my university,

(58:34):
each session was only ten bucks. And remember that in college,
all that stuff was so cheap, like the doctor. You
can go see a shrink for like five dollars. I
remember I got acupuncture of like three bucks a session.
Really they had no I did that in l A
through a university though my roommate there's just some dude exactly.

(58:54):
He was good with a needle. Um uh. And it
could also be charged to my births are account, which
I don't even know what that is. Burstir. Yeah, I
didn't have one of those. Yeah, I remember that from college,
but I don't remember what it was. I think the
word looks familiar. The health building was on campus so
sessions fit right into my schedule, and I can't stress

(59:16):
enough how beneficial it was for me. Without therapy, I
would no doubt have not made it through college and
graduate school. There's no shame in therapy or medication to
help you through tough times. Turns out pretty much everyone
goes through it to some extent, and no one is
weak for getting help. Admitting you need help is what
makes you a stronger person in my opinion. And Rosalie Maltby,

(59:38):
researcher at the University of Oklahoma Department of Biology, I
couldn't agree more. Well, thanks a lot, is it? Rosa Lee, Rosalie, Rosalie,
Thanks a lot, Rosalie. We appreciate you writing in spreading
that message because it's a good one. Very pretty name
as well. Um, if you have a patent, we want
to hear from you. Tell us what your patent is

(59:58):
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