So, You've Just Read About Someone Getting a Patent

A day does not go by without a new article about a company or individual obtaining a patent. A company itself may be behind an article because it wants to hype its technical achievements, as was the case with “Powerhouse Dynamics Gets Patent for Appliance Monitoring Technology.” Or someone may publish a piece to report on his patent “sleuthing,” see “Apple Patents A Smarter, More Accurate Wrist-Based Activity Tracker.”

Understanding some basic patent concepts will help you interpret this kind of “news.”  It will also help you in discerning what your competition may be up to with their (possibly) patented new technology.  Some definitions are in order:

According to 35 U.S.C. 271, “whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States,….infringes the patent.”  This is often referred to as a “negative right” in that a patent provides the patent owner with the ability to prevent others from making, using, selling, etc.  As to determining what has been patented, i.e., what is protected, one looks to the patent claims.

A patent, according to 35 U.S.C. 112, includes “a written description of the invention, and of the manner and process of making and using it, in … terms as to enable any person skilled in the art … to make and use the same.”  In addition, the specification “shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.”  If you have ever read a patent, those numbered paragraphs at the end of the description are the claims and, in some cases, may be where you stopped reading because they can be, at times, inscrutable.

The claims define the “metes-and-bounds” of the invention and one looks at the claims to determine whether infringement has occurred.  The claims are central to understanding the protection provided by the patent.  The interpretation of claims, however, has filled volumes of court decisions and is beyond the scope of this article.

In the United States, patents issue every Tuesday and are assigned a patent number.  As of this writing, Patent No. 8,671,461 appears to be the highest number to date.  An issued patent gives the owner the rights of exclusion outlined above.

Additionally, every Thursday, pending patent applications are published per the American Inventor’s Protection Act which requires publication of some patent applications eighteen months after their earliest effective filing date.  Not all patent applications, however, are published. These publications are given a number in the form of 20140075637, where the first four digits indicate the calendar year.  Published patent applications, in and of themselves, do not provide the owner with any exclusionary rights although they may function to put potential infringers on notice (an issue not being discussed here).

So, returning to the two online articles above, we note that the first one tells us that “Powerhouse Dynamics has been awarded a patent for a technology which can remotely monitor appliances to gauge how efficiently they are operating.”  This tells us that they are talking about an issued US patent.  One could then look to the claims to get some idea of what was being protected.

The second online article indicates that Apple has patented some technology, at least according to the title.  Reading further, however, it states that “Apple has applied for a patent for an improved wearable pedometer design….”  Clearly, this is referring to a pending patent application.

There is, however, information to be obtained from reviewing a published application.  First, patent applications may reflect the technical area a company is researching and indicate where new products from that company may be targeted.  By looking at the published claims, one can get a sense about what aspect of the invention the applicant is trying to protect.  This could be different from the characterization provided in an accompanying article or press release.  In addition, once a patent application has published, its progress through the Patent Office can be monitored by third parties who can then possibly discern the ultimate scope of coverage as based on the claims.

I have attempted to provide the reader with an understanding as to the differences between an issued US Patent and a US Patent Publication and how reviewing the claims will give an indication of the protection obtained or being sought, respectively.  It must be strongly emphasized, however, that one should only rely on a claims interpretation provided by a qualified attorney, as the claims construction ultimately relies on more than just the words in the claims.  Any business decisions, and certainly conclusions as to non-infringement, must be based on a qualified analysis.