Solved by verified expert:following the file and answering these questions. the question usually be green or yellow letter. the answering better be more creative.
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Module 10
Creativity & Society
Experience 17
1
Experience 17
Society can protect your Creativity
One of the many amazing achievements of the Founding
Fathers was to recognize how this new country would
protect and reward its creative persons. This was done
by the construction of the U.S. Patent system. The
Venetians originated the concept of patents and the
British adopted the idea of Letters Patent in 1623. The
U.S. system begun in 1790 and now in place, is
considered to be the best in the world. Only three
patents were granted that year. Now about 350,000
applications are submitted annually. As President
Abraham Lincoln observed “The patent system added the
fuel of interest to the fire of genius”. Interestingly, the
comedian Jay Leno on his Election Day show pointed out
that Lincoln himself was also an inventor … of the penny,
the town car and logs for example !
2
It is very important that you understand the positives
and negatives of the patent system.
Firstly, you should be clear what a patent actually is, in
general. You can regard it as a written legal contract
between yourself and the American People represented
by the US Patent Office. You have created something of
value that you are going to share with, and later transfer
to, the American People. In exchange for the receipt of
this knowledge, the US society grants to you a Monopoly
to benefit financially from your knowledge for 20 years
in the USA. Note that the Monopoly applies only within
the USA. This means that no entity can make or sell
your creation within the USA. It is possible to obtain
similar rights in other societies elsewhere, but these
rights are granted by other countries and have to be
applied for separately.
3
Since the founding of the USA, more than 9 million
patents have been awarded. About 50,000 issue each
year. Each one had to meet the criteria of being
(a) new (b) useful and (c) not obvious to one skilled-inthe-art.
Most of these 9 million patents have expired and can
now be used by anyone without payment of any kind.
The first was awarded on July 13, 1790 to S. Hopkins of
Vermont and deals with a process for making soap from
wood ash. The patent was signed by President George
Washington, Secretary of State Thomas Jefferson and
Attorney General Edmund Randolph. So, if you want to
start your own company but don’t have an idea you only
need to go back twenty years to 1997 and all those
original ideas created before that year are now available
for exploitation.
4
Since patents decline in value as their expiration date
approaches, probably all of those up to 1998 can also be
considered for commercialization. By the time your
fledgling company is ready to roll, patents granted
around 1998 will be essentially worthless.
Many patents granted in the past are quite amusing and
may have merit nowadays as the basis for children’s toys.
You should make connection with the world of patents
because patents are the ongoing record of the world’s
creativity. Recall that when the ideas embodied in these
nine million patent applications were first examined all of
the patented ideas were NEW, USEFUL and NOT
OBVIOUS TO ONE SKILLED IN THE ART !
5
Two of the books on our reading list deal with patented
inventions and you should enjoy scanning the following;
Totally Absurd Inventions.
http://www.totallyabsurd.com/toiletsnorkel.htm
The books, America’s Goofiest Patents, by Ted Van
Cleave, Andrews McMeel Publishing, as well as
Absolutely Mad Inventions, by A.E. Brown & H.A.
Jeffcott, Jr., Dover Publications, Inc., 180 Varick St.,
New York, NY, 1970, are also worth reading.
Inventions Necessity is Not The Mother Of, S.V.
Jones, Quadrangle/The New York Times Book Co. , 10
East 53rd. St., New York, NY, 1973, is also amusing.
6
Societies in many countries recognize the potential
benefits of a patent system in theory, but not in practice.
A patent is only of value if it can be asserted successfully
in a Court of Law. In the USA, it is extremely foolish to
disregard an issued US Patent because the holder of the
patent can seek legal redress which can be very costly to
the infringer. As a legal contract, a patent has a very
precise form.
Go to USPTO.gov on internet to see patent examples.
It is usually written by a patent attorney or a patent
agent. This can be quite expensive. It is therefore
desirable to write the first draft yourself before you go to
see an attorney. This will reduce your costs. Let’s see
how to do this. The first section of the patent is a listing
of all articles and other patents which you compile, that
are possibly related to your creation. The length of this
list immediately indicates how unique your invention is.
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A long list shows that many other people have made
inventions in the same general area. This list helps the
People’s representative, who is called the Patent
Examiner, check in their files for other patents that you
may have overlooked.
Following this list, there is a short section under the
heading Abstract. This summarizes the invention in
general terms.
Thereafter, there is a long Background section that
tells the American Public what was the situation in the
world up to the point when you came on the scene.
Then you explain your invention and how it is better
than anything that existed before you started to tackle
this particular problem. In this section it is vital not to
try to impress the Patent Examiner with your powers of
deduction or reasoning abilities. This is a mistake
scientists and engineers often make.
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If you proudly emphasize that your solution was arrived
at by careful reasoning you may run into trouble. The
Patent Examiner may then respond that anyone skilled in
the art could have reached the same conclusion by
similar orthodox reasoning and therefore your invention
does not meet the third requirement for patentability
specified above.
It is therefore preferable for the purpose of obtaining a
patent not to give explanations of how you believe the
invention works. The liberal use of such phrases as
“unexpectedly” and “surprisingly” are helpful in avoiding
rejection of your application on the basis of “obviousness
to one skilled in the art”.
The next section of the application consists of Roman
numeral numbered examples of specific instructions of
how to carry out the invention so that any of the
American People can do this 20 years later, in the most
straightforward way.
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The first example must therefore be your best way of
performing the invention. In other societies this need not
be the case, and the best mode of the invention may be
hidden among a bunch of not so good examples.
German patents sometimes have the reputation of being
less than straightforward.
Finally, after the examples comes the vital heart of the
patent; the claims. There are usually several. The first is
the broadest claim. It is followed by as many as ten or
twenty other claims of increasing narrowness. You can
regard the first claim as equivalent to a fence that a
pioneer in the West might have put around his house so
as to enclose a large amount of land and to say “I claim
all that is inside this fence”. But then the pioneer might
say to himself “If I am too greedy, a neighbor or Native
Americans might come along and dispute the amount of
land I have claimed.
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“Perhaps I should put up another shorter fence, inside
the first, to claim a smaller area”. This would correspond
to the second claim of the patent. If this sequence of
thoughts is continued, eventually the pioneer might have
a fence enclosing only the acre of land immediately
around his house.
This would correspond to the last claim of the patent,
but clearly would be more defensible than the first claim
because it is less comprehensive. Your goal in
negotiating the claims with the Patent Examiner is to get
your first claim to be as broad as possible. The Patent
Examiner’s negotiation goal is to make your first claim
as narrow as possible. Ultimately, you and the Patent
Examiner reach an agreement as to the scope of the
claims so that you are rewarded for your invention but
that the American People are not paying too high a price
for what they are receiving in exchange for the 20 year
monopoly.
11
This is a good place to point out that the most revered
scientist of modern times worked for some time as a
Patent Examiner in the Swiss Patent Office. That was
Albert Einstein. Although initially Einstein could not
obtain a position as a professor or scientist (because
none of his professors would recommend him !), one
can argue that the only job he could get as Patent
Examiner, was the perfect one for him. Why ?
Because he spent his days sitting at a desk reading
about other people’s creative accomplishments in their
patent applications. This must have given him lots of
time to think. Remember how hard it is to find time to
think ! Anyone looking at Einstein sitting at his desk,
apparently doing nothing, would not know if he was
mentally considering the novelty of a patent application
before him, or speculating about riding on a beam of
light through time.
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In contrast, if he had been a young Assistant Professor
at a university he would have been very busy organizing
and teaching introductory Physics courses and might
never had the time to think the thoughts and ask himself
the questions that revolutionized the world. So Einstein’s
great contributions were conceived while he was a Swiss
Patent Examiner negotiating with inventors.
Maybe you should consider a career in society as a
Patent Examiner in Washington, DC, or in some other
country ! On-the-job training is provided and Patent
Examiners are well paid. Former Patent Examiners are in
keen demand later for employment by major companies
because of their experience in the Patent Office.
13
In the past, all of this negotiation with the Patent
Examiner to arrive at the issued U.S. patent had to be
conducted by someone approved to appear before the
Patent Office. This is usually a patent lawyer or a patent
agent. The cost of their time is considerable so that it is
expensive to obtain a patent. You can try to keep the
cost down by doing as much of the paperwork as
possible and acting as an assistant to the patent
attorney.
However, nowadays it is apparently possible for the
inventor to file patents online without legal assistance.
The book Filing Patents Online by Sarfaraz K. Niazi,
CRC Press, Boca Raton, FL, 2003. provides detailed
instructions on how to do this.
Another source is Patent it Yourself by David
Pressman, Nolo, Berkeley CA, 2005.
14
There are organizations that offer to evaluate the merit
and patentability of your ideas as a prelude to selling the
idea for you. However, these are frequently so ethically
questionable that the U.S. Federal Government has
actually published a pamphlet warning of the dangers of
dealing with them.
Check website “Reading Assignments” to see pamphlet.
Patents are classified into three categories.
The most valuable category is the so-called Utility Patent
that we have been discussing. This is awarded for any
new useful process, a new machine or a new composition
of matter.
A less dramatic category is the so-called Design Patent.
Such a patent lasts only for 14 years and protects the
ornamental design of some manufactured article.
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Only the appearance is protected, not the structure or
utility. It is not costly to obtain a Design Patent and the
filing fees are lower than for the Utility Patent category.
The third category of patents deals with any distinct and
new variety of an asexually reproduced plant, including
cultivated mutants, hybrids, and newly found seedlings,
other than a tuber-propagated plant or a plant found in
an uncultivated state. If you created a Black Tulip (you
might want to read the novel by Alexandre Dumas) you
would apply for a Plant Patent.
At this point you may ask why does the US Society make
it so difficult and expensive to set up this contract that
we call a US Patent ?
16
One answer is that the issuance of a US Patent confers
upon the awardee the right to maintain a monopoly in
the US for many years that may be financially, extremely
valuable. Accordingly, the documents defining the
extent of these rights must be legally precise to perhaps
withstand attack at some future time. Such attacks to
contest claims or to invalidate issued patents do occur
quite frequently.
When an individual member of society does not wish to
protect his creation by a US Patent there are other
actions that can be taken. Firstly, the likelihood that
someone may come along to copy your invention may
be deemed small. Or, the creation may depend upon
some factor that can be kept secret. The best example
of this is the formula for the soft drink, Coca-Cola. The
formula is not patented and anyone is free to make and
sell a similar or even identical beverage.
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However, since the precise composition is a carefully
guarded secret of the Coca-Cola Corp. it would not be
easy to create an identical drink.
In the past, some employees of the Coca-Cola Corp.
allegedly stole formulae information and marketing plans
and tried to sell them to the competitor that
manufactures Pepsi Cola. Of course, trade secrets are
property like diamonds, gold and silver, and their theft is
a crime. Therefore, protecting your invention as a trade
secret is certainly an option. Nonetheless, it is
somewhat difficult for an individual member of society to
build a new company upon something that must be a
carefully kept secret. It is also hard to sell a secret
without telling the potential buyer what exactly is being
purchased.
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These obstacles are avoided when you are the owner of
an issued patent that describes precisely what the
creation is and what are the allowed claims. Of course,
the question of the substantial cost of the patent still
remains as a grave impediment to the individual member
of society. This cost will be often in the range of several
thousands of dollars.
For a time, the US Government provided a means of
resolving this dilemma through its Document Disclosure
program. In a nutshell, in this program, you were able to
write up your invention in a simple form, without the
assistance of a patent attorney or patent agent, and
send it in to the Dept. of Commerce (Box DD,
Commissioner for Patents Washington, DC 20231)
together with a check for $10.
Unfortunately this Program has been discontinued and is
only mentioned here in case it is reintroduced later.
19
The description was receipted and preserved on file for
two years. During that period of time, you could contact
potential investors or buyers, confident that you had a
federal record of your invention to establish your
ownership of your conception. If you did not succeed
during that 2 year period in finding buyers or backers,
there was nothing to prevent you sending in the same
Disclosure Document again with a new date and another
$10 check.
Nowadays about all you can do is to file a provisional
patent and that only lasts for one year. Within that year
a regular patent must be filed to maintain protection of
your idea and keep the original filing date. A provisional
patent for an individual costs about $160.
20
You may have heard of the notion of protecting your
invention by sending yourself a registered letter
containing a description of your invention that you keep
unopened after delivery. It is doubtful that the alleged
advantage of this procedure is much more than an old
wives’ tale. Your original conception in your creativity
idea diary, duly witnessed and dated, together with a
record of continued diligence in innovation in your
Creativity Diary would be far superior in any future legal
dispute as to the priority of inventorship.
Now go to the US Patent Office website www.uspto.gov
and write a paragraph on issued patents (with their
numbers and dates) related to your Midterm idea.
21
Foreign Patents
Patents can be obtained by filing applications in any
country that you consider might be a large market for
your creation. As in the USA, the patent grants a period
of monopoly to the inventor. However, if the legal system
of the country does not rigorously enforce patents it is not
worth the considerable expense of obtaining a patent.
The pirating of computer software, movies and music
recordings is very difficult to combat, particularly in Asia,
and legal protection does not seem to be effective there.
In Europe, there is now a simplified mechanism for filing
in countries within the European Union. The examination
is conducted only once and is valid for all EU member
countries. After the general EU approval is granted,
specific versions in the languages of each country
(German, French, Spanish etc.) have to be submitted to
each country where the monopoly is sought.
22
The system developed in Japan is worthy of specific
mention because of a special irritating variation. There it
is possible to file an application that is published without
examination by the Patent Examiner. This application
need never be carried beyond the preliminary stage.
However, because it constitutes a recognized official
record it can be cited as prior art against someone else’s
US Patent Application. Originally, Japanese society
emphasized innovation and the abundance of highquality Japanese-made cars, motorcycles, cameras and
electronic gear in the world’s markets is evidence of the
success of this approach. Nonetheless, it is not so easy
to find a comparable level of accomplishment in
creativity in Japanese society.
23
The education system in Asian countries does not
emphasize creativity and there was a Seattle newspaper
article entitled “Creativity Lacking in Chinese
Schools”. When China and India more fully grasp the
crucial importance of creativity in their societies the world
will undergo amazing changes. The unemployment level
for young people, like yourselves, in many countries,
including currently protesting Iran, is close to 30%.
An exception to this apparent lack of creativity is the fact
that a Japanese inventor, Yoshido Nakamatsu, holds some
2300 patents. This is the world record number for the
number of patents held by an individual. It is intriguing to
analyze this record mathematically with respect to time.
Assume Nakamatsu has been inventing for 23 or 46 years.
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Then he has been creating about 100 or 50 patentable
inventions per year ! That is, about 2 or 1 inventions
per week for nearly a quarter or half a century, without
a break. What a wonderful record of creative
accomplishment !
It would be interesting to determine how many of the
Nakamatsu patents were also filed in the USA and if
there are any other names on the patents. Remember,
you must sign an affidavit with a US Patent application
stating that you are the true inventor. Has Nakamatsu
never had a colleague who has co-invented something ?
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Trademarks and Trade Names.
Another interaction of US society with creativity comes
into play with Trademarks and Trade Names. This
section ties into our earlier discussion of the importance
of names. Trade Names are the designations that
companies employ to describe themselves in doing
business. Microsoft is an example of a Trade Name.
Google and Ford are also Trade Names. If you had a
company, it would have to have a name, and it is
challenging to try to create that designation.
Make a list of 10 companies you know and comment on
what the Trade Name of each tells you.
Trademarks, in contrast, are the names of the goods or
services that the company sells. So in the phrase “Du
Pont Teflon” the word “Du Pont” is the Trade Name
while the word “Teflon” is the Trademark of the fluorinecontaining plastic made by the Du Pont Company.
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You will have perhaps encountered this plastic as a nonstick coating for cooking utensils.
Trademarks should be followed by the letter R enclosed
in a tiny circle to show that it is registered. …
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