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hi, i'm stan muller. this is crash course:intellectual property and today we're talking about patent law. that's why i'm wearing thesefancy patent leather shoes. they're a little too small and uh, i had a hard time puttingthem on. if only somebody would invent a new useful and non-obvious tool for forcing feet intotoo small shoes. mark, can i take these off now? [theme music] a patent is a grant by a government that allowsan inventor to maintain a monopoly on the use and development of an invention for alimited time. patents allow inventors to prevent or exclude other people or companies frommanufacturing, selling, or using their patented inventions. governments grant these exclusiverights in exchange for the clear and detailed
public disclosure of inventions. so here's the deal. you invent something awesome,explain how you did it in patently obvious terms, we'll let you be the sole owner fora couple of decades or so which should give you enough time to make some money off thething. ideally, you'll get rich for your inventiveefforts before the term expires or maybe you'll pour all that money into more research anddevelop new patents. the notion of giving talented inventors andinnovators a limited monopoly in exchange for their instructing the rest of their lesstalented fellow citizens is not new. it's generally accepted that the first systematicpatent law was developed in venice, a hotbed
of renaissance industrial activity. the 1474venetian patent statute sums up the economic rationale of patent law pretty nicely. "we have among us men of great genius, aptto invent and discover ingenious devices; and in view of the grandeur and virtue ofour city, more such men come to us every day from diverse parts. now, if provision weremade for the works and devices discovered by such persons, so that others who maysee them could not build them and take the inventor's honor away, more men wouldthen apply their genius would discover, and would build devices of great utility and benefitto our commonwealth." wow. these venetians really thought a lotof themselves. "grandeur and virtue of our city."
this idea of granting exclusive rights to inventorsto encourage discovery, spread throughout europe, into england and then to the united states, whereit was incorporated into the u.s. constitution. in order for an innovation or invention tobe patentable, the invention must satisfy five requirements. we'll look at all of theserequirements generally, and we'll look at the patent for our trusty liquid-filled dieagitator containing a die having raised indicia on the facets thereof. magic 8 ball's patent was issued in 1964 and did it meet all these requirements? yes. so this seems a little circular, but the firstrequirement is that the patent's subject matter be patentable. the categories for patentablesubject matter are defined as broadly as any process, machine, manufacture, or compositionof matter, or improvement thereof. the supreme
court has interpreted this to mean that anythingunder the sun that is made by human beings is patentable. however broad this definitionmight be, certain things like, the laws of nature, physical phenomenon, abstract ideas,have consistently been held not to be patentable. the distinction here is that the innovationhas to be the product of human inventiveness, and not the product of nature. the supreme court recently looked at thisissue in a 2013 case involving a biotech firm that had isolated human dna linked toovarian and breast cancer. the company argued that it had developed an innovative process for looking for mutations that might lead to cancer and isolating. they argued that the isolated genes were the productof human inventiveness and therefore patentable.
the court disagreed, finding that a naturallyoccurring dna segment is a product of nature and not patent eligible merely becauseit's been isolated. the magic 8 ball is certainly the productof human inventiveness, although it would be fantastic if these were formed by nature,like if they washed up on beaches or maybe there was a magic 8 ball tree. i use fantastichere in the sense that this is obviously a fantasy. but, uh, mmm, what a world that wouldbe. so are you patentable subject matter or what? it is certain. the second requirement for patentability isthat the invention be useful, which means
both that it has some identifiable benefitand that it's capable of being used. patent law often refers to a person of ordinary skillin the art. what they're talking about here is an engineer or fellow inventor that canunderstand the technical information included in the patent. this differs from like tortlaw, where the law often refers to a reasonable person standard. understanding patents requiresa little more technical expertise. i mention this because the second requirement relieson a person skilled in the art to accept that the invention described in the patent is usefuland that it works. the magic 8 ball is very useful. it functionsin the way that the patent claims it does. it displays answers to yes-or-no questions such as, "should i join the merchant marines?"
or "will i die alone?"are you useful? it is decidedly so. the third requirement for patent protectionis that the invention be new or novel. basically, if somebody else already invented or patenteda similar invention, you can't get a patent. going back to the case of our magic 8 ball,despite the fact that its application notes that similar devices exist, the novelty ofthe 1964 version lies in the shape of the die, which allows for a better question-and-answerexperience. are you novel? outlook good.
the innovation must also be non-obvious. thetest for non-obviousness is whether the innovation and the prior art, by which i mean all thatwhich has come before the innovation, are such that the innovation as a whole wouldnot have been obvious to a person having ordinary skill in the art at the time the inventionwas made. this is kind of a difficult theoretical task for a judge or patent examiner. sometimesthe most inventive leaps of logic yield solutions that are so elegant that they seem obviousonce you've seen it. the magic 8 ball 1964 patent was for an improvement to the originalinvention. the inventor added many more sides to the die and also added the all-importantraised indicia: the raised lettering, so as to prevent bubbling between the viewing screenand the die. it doesn't seem obvious to me.
magic 8 ball, are you non-obvious? without a doubt. the final requirement is enablement. technically,this means "the specification of the patent shall contain a written description of theinvention, and of the manner and process of making and using it, in such full, clear,concise, and exact terms as to enable any person skilled in the art to which it pertainsto make and use the same, and shall set forth the best mode contemplated by the inventorof carrying out his invention." whoever wrote this doesn't understand the terms clear andconcise. what they're saying is that the plan submitted with the patent have to be clearand complete enough for someone else to recreate
the invention without too much trouble. beyondthis, the applicant has to describe the best mode of making this thing happen. the inventorcan't give people the runaround. if there's a best way to recreate the invention in question,the inventor is required to disclose it. this final step is essential to the underlyingrationale of patent law. without a clear and accurate explanation of how to make and usethe innovation, the public gets nothing in return for granting the limited monopoly. so, what's it gonna be, magic 8 ball? can we make or use you based on the patent'sdescription? as i see it, yes.
there are 3 types of patents issued by thepatent & trademark office: utility patents, design patents, and plant patents. the 5 requirementswe just talked about refer to utility patents. design patents cover any new, original, andornamental, rather than useful, article of manufacture. apple is famous for their designpatents and their utility patents. plant patents are granted to persons who firstnoticed the distinctiveness of a plant, then reproduced it asexually, by grafting or cloning,rather than growing it from a seed. if you grow it from a seed, you can't patent it.the plant must be novel and distinctive to be granted a patent, which basically meansthat it has to have at least one significant distinguishing characteristic to establishit as a distinct variety. so this is what
a plant patent looks like. not a lot of themget issued relative to utility or design patents. on a related note, the human-made plant, ora plant that's been genetically engineered, can also be the subject of a utility patent.provided it meets all the 5 requirements we talked about. often, these are plants thatare resistant to certain herbicides or are better suited to shipping. there's even a man-madevariety of cotton that's resistant to pests. patents don't last forever. the term of protectionfor utility patents is 20 years, measured from the date of filing. there are extensionsof up to 5 years allowed for drugs, medical devices, and additives. the current term ofprotection for design patents is 14 years, and that's also from the date of filing. sopatents are all about the money.
let's talk about that in the thought bubble. in terms of economic impact, patent law isarguably the most important branch of intellectual property. there are legitimate questions aboutthe role of patents and what types of research and development patent law encourages. doesthe law encourage more research into highly lucrative erectile dysfunction medicationsthan stuff like anti-malarial drugs? should developing nations be able to create publichealth exceptions for life-saving proprietary medications? if so, then how would companiesbe able to pay for the development of these medications or future life-saving medicationswithout the assurance of patent protection? and then there are non-practicing entities,often called patent trolls, that go around
acquiring huge patent portfolios, and thenthreaten to sue pretty much everybody. patent trolls bring these lawsuits despite the factthat they have no interest in developing or manufacturing any actual products. this istheir business model. because of the high cost of litigation, costs can range from abouta $1,000,000 to $5,000,000 if this goes to trial and the threat of massive damage awards.most companies sued by patent trolls settle or agree to pay a licensing fee to the trolls. there's legislationpending in congress designed to address this issue. thanks, thought bubble. so the policy issuesaround patents are incredibly complex and controversial, and this video is only a basicoverview. the underlying purpose of patent law, which is to reward inventors for theirskill and effort, is often in direct opposition
to the public's interest in accessing thoseinnovations. whether it be life-saving medications that costs thousands of dollars per pill orwater treatment technologies that developing countries can't afford to license. the trickis to strike a balance between providing inventors with incentives and ensuring public access. how weattain that balance is still very much an open question. thanks for watching, we'llsee you next week. crash course intellectual property is filmedin the chad and stacey emigholz studio in indianapolis, indiana, and it's made by allof these nice workers for hire. if you'd like to keep crash course freelyavailable for everyone forever, you can support the series at patreon, a crowdfunding platformthat allows you to support the content you love.
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our vice principals, kathy and tim philp andlinnea boyev. thank you so much for supporting crash course. you can get awesome rewardsfor your support, but you don't get ownership of our crash course copyright. you do, however,get to help people learn. thanks for watching. we'll see you next week.