[8471] in Commercialization & Privatization of the Internet
How Patents Work
daemon@ATHENA.MIT.EDU (Tansin A. Darcos & Company)
Sat Nov 20 03:56:36 1993
Date: Sat, 20 Nov 1993 03:33:42 -0500 (EST)
From: "Tansin A. Darcos & Company" <0005066432@mcimail.com>
Reply-To: "Tansin A. Darcos & Company" <0005066432@mcimail.com>
To: Privatizing the Internet <com-priv@psi.com>
>From: Paul Robinson <TDARCOS@MCIMAIL.COM>
Organization: Tansin A. Darcos & Company, Silver Spring, MD USA
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Because there seems to be a bit of confusion, I'd like to give a little
bit of background on what an invention patent is and how it works.
I use the term "invention patent" because there are others, notably the
registration of titles in what are called "land patents".
There are three types of invention patents (and from now on, when I use
the term 'patent' that is all I am referring to.) There are plant
patents, design patents and process patents.
Plant patents allow someone to obtain protection for a new plant created
by budding, grafting or cutting one plant onto another, except for certain
types of potato plants.
Design Patents allow someone to obtain a protection similar to copyright
for the design of a particular object. The most famous design patent is
the "Christmas Coca-Cola" bottle, so noted because the U.S. Patent office
issues all patents on Tuesday, and as it happened, December 25, the year
that the design patent on the bottle was issued was a Tuesday, so the
bottles of Coca-Cola (in the tapered shape) had the logo "Patented Dec 25"
and that year written on them, as was required by law.
Then we come to the part that most of the concern is related to, Process
Patents. These protect a method of doing something or a particular
developed product against someone else making, using or selling the
patented device or process for the term of the patent.
Until recently, process patents were valid for 17 years. Now, patents are
valid for 17 years with the proviso that during that period at certain
periods of time, I think it's 3, 7, 10 and 14 years, renewal fees must be
paid or the patent expires.
A patent is a description of how to make a certain thing or perform the
process. The description must be sufficient to allow someone trained in
the art the patent deals with to be able to construct the patented
article (or perform the patented process).
After describing what the patented article is and how it is made, drawings
must be included to show how it looks and to explain all internal parts
and conditions.
Finally, and this is most critical, the inventor then issues 'claims'.
The claims are the crucial part of the patent. A claim is a statement by
the inventor as to a particular function or capability of the
patented article (or process). There are two kinds of claims; Primary and
Dependent. Dependent claims are based on other claims; primary
claims stand by themselves.
It is only the claims that cover the manner and means by which the patent
is allowed to restrict the particular method or process needed to use the
product that count.
If someone can figure a way to use a patented product in a way not covered
by the patent, then their usage is non-infringing. This is a common
practice in the drug industry where someone invents a particular chemical
and another company will change the molecule slightly in order to create a
similar drug.
This is the key. What the company says the patent covers and what the
claims are could be two different things.
For example, I have read the Heatherington '402 patent assigned to Hayes
Microcomputer and covering the guard time around the escape sequence in a
modem. The claims cover devices that perform communications in a modem
or the software that does so as part of the modem.
After receiving the packet from Hayes, I asked one of the people from
their legal department if they claimed that the requirement to license
Hayes patent included terminal programs. He claimed it did. I had read
the patent, and the claims did not include programs that aren't part of
the modem. If I read the claims correctly, it would only apply if the
terminal program were part of the modem and interpreting the escape
sequence as opposed to sending the sequence to a modem.
What a company _says_ their patent covers, and what the _claims_ in the
patent do cover, can be two different things.
---
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Paul Robinson - TDARCOS@MCIMAIL.COM
Voted "Largest Polluter of the (IETF) list" by Randy Bush <randy@psg.com>
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