Patent Authorized by Article I, section 8, of the Constitution “to promote the progress of science and useful arts” by granting exclusive rights to authors and inventors “for limited times,” Congress made patents broadly available to “whosoever invents or discovers any new and useful process, machine, manufacture or composition of matter.” In practice, however, the Supreme Court in Graham v. John Deere Co. (1966) denied Congress the power “to remove existent knowledge from the public domain, or to restrict free access to materials already available” (p. 6), while the Court's decisions in the recent past so limited the enforcement of patent rights that Justice Robert Jackson stated in a dissent his belief that “the only patent that is valid is one this Court hasn't been able to get its hands on” (Jungersen v. Ostby, 1949). In this way, echoes of the nineteenth‐century controversy concerning the social utility of a patent system influenced the Supreme Court's thinking well into the twentieth century, particularly its belief that the useful arts prospered best when free market competition was unhindered by legal monopolies.8

Beginning in the 1970s, however, both the executive and legislative branches reevaluated the role of the nation's intellectual property system in a drive for greater international competitiveness and for an improved balance of trade. In the spirit of reform, Congress conferred exclusive jurisdiction over patent appeals upon a newly created and specialized tribunal, the Court of Appeals for the Federal Circuit, which has revitalized the domestic patent law since its inception in 1982. Responding to this more protectionist ethos, the Supreme Court handed down several ground breaking decisions in the 1980s that appeared to have expanded patent protection. Nevertheless, unresolved judicial tensions between the Court's traditional free‐market bias and current protectionist sentiments continue to haunt every major branch of patent jurisprudence, and the extent to which the Supreme Court has made a lasting commitment to a stronger patent system remains uncertain.

Most of the rules judicially crafted during the nineteenth century derived from the Supreme Court's characterization of patents as the product of a social bargain in which inventors were rewarded for the benefit of society at large. The Court obliged patentees to distinguish their inventions from the prior art and to limit their claims accordingly. It required full disclosure of how to make and use the patented inventions. Prior public use or knowledge usually destroyed the element of novelty.

In the 1980s, the Court broadened its reading of the statute to permit the patenting of biogenetically engineered organisms (Diamond v. Chakrabarty, 1980) and of computer program‐related inventions insofar as they partook of processes or mechanical devices otherwise eligible for protection (Diamond v. Diehr, 1981). In these decisions, the Court leaned toward greater emphasis on the role of patents in stimulating technological innovation.

Although the patent statute of 1793 had already set down the substantive prerequisites of novelty and utility, the Supreme Court derived a third requirement of “invention” (i.e., inventiveness) from the language of the Constitution. It was this controversial standard of invention, first articulated in Hotchkiss v. Greenwood (1850), that had enabled the Supreme Court to invalidate patents in twenty significant cases between 1930 and 1950, a period in which the Court upheld only five patents. Typically excluded were so‐called combination patents that incorporated previously known elements in a new way. In contrast, “pioneer” inventions, such as Bell's telephone or Edison's electric lamp, received liberal treatment under the prevailing reward philosophy even in the face of doubtful evidence.

In 1952, Congress codified the nonobviousness test of invention, but it was not until the Supreme Court's landmark decision in Graham v. John Deere Co. that this codified test fully matured. According to Graham, courts evaluating nonobviousness were obliged to determine the scope and content of the prior art, the extent to which the candidate invention differed from the prior art, and the level of ordinary skill in the trade. The invention became patentable if it would not have been obvious to one reasonably skilled in the art at the time it was discovered. The Graham opinion also permitted these “subjective” indicia of nonobviousness to be corroborated by a fourth set of subtests, known as the secondary considerations, which look to such allegedly “objective” factors as commercial success, copying, long‐felt but unsolved needs, failure of others, and acquiescence of the trade. The Graham test did not appreciably lessen the difficulties of applying the standard of invention until the Court of Appeals for the Federal Circuit, beginning in 1982, made the secondary considerations a crucial subtest in evaluating the nonobviousness of issued patents in all relevant cases. As a result, the likelihood of judicial invalidation has declined precipitously in recent years, as regards both utility patents and design patents, without provoking a negative response from the Supreme Court.

The patentee's right to make, use, or sell the patented invention is broad and domestic patent owners cannot be compelled to practice or license their patents. On the whole, the Supreme Court has tended to construe the scope of issued patents strictly, in keeping with its historical preference for free competition over private rewards and incentives. Despite this conservative record, the Supreme Court accepted and developed the doctrine of equivalents, which limits the ability of a competitor to take the substance of a patented invention while deviating from the literal language of the claims (Winans v. Denmead, 1853; Graver Tank & Mfg. Co. v. Linde Air Products Co., 1950).

The restrictive view of patents espoused by the Supreme Court throughout much of the twentieth century logically inclined it to take a dim view of state action impinging on the patent system because that system “is one in which uniform federal standards are carefully used to promote invention while at the same time preserving free competition” (Sears, Roebuck & Co. v. Stiffel Co., 1964; Compco Corp. v. Day‐Brite Lighting, Inc., 1964). In 1989, the Supreme Court reaffirmed this view in Bonito Boats, Inc. v. Thunder Craft Boats, Inc., a unanimous opinion that struck down state statutes that encroached on the design patent law by prohibiting competitors from duplicating certain unpatented boat designs. This decision appeared to invest a competitor's right to reverse engineer unpatented products with constitutional underpinnings.

See also Capitalism.

Bibliography

Donald Chisum , Patents: A Treatise on the Law of Patentability, Validity and Infringement (1990).
Edmund Kitch , Graham v. John Deere Co.: New Standards for Patents, Supreme Court Review (1966): 293–316.
Philip Kurland, ed., The Supreme Court and Patents and Monopolies (1975).
J. H. Reichman , Design Protection and the New Technologies: The United States Experience in a Transnational Perspective, University of Baltimore Law Review 19 (Winter 1990): 6–153.

J. H. Riechman

patent in law, governmental grant of some privilege, property, or authority. Today patent refers to the granting to the inventor of a useful product or process the privilege to exclude others from making that invention. Patent is also the term for the conveyance of public lands to an individual. Patents developed out of the medieval institution of allowing monopolistic control over useful goods in order to encourage their sale and distribution; the authority was contained in letters patent (meaning open, i.e., public). The corrupt sale of such privileges and the consequent increase in the price of necessities led in England to the Statute of Monopolies (1623), which abolished all monopolies except those of inventors in their inventions.

The U.S. Constitution (Article 1, Section 8) authorizes Congress to enact patent legislation; the first such law was enacted Apr. 10, 1790. In 1836, Congress created the U.S. Patent Office (now the U.S. Patent and Trademark Office) and established the basic principles of American patent law. Comprehensive revision of that law occurred in 1870 and in 1952. In the United States any process or device may be patented if it is novel and useful and if plans and a working model are supplied. In all countries patents are valid for a limited term only (17 years in the United States); this limit ordinarily secures a profit to the inventor for a reasonable period yet will not permanently deprive the public of the free use of the invention.

The American law was designed to encourage the maximum inventiveness. Unlike many European countries where the rights to patents are limited so as to make innovations in industry easier, the United States does not require the patentee to permit the use of the invention on pain of losing the patent. Although there have been many independent inventors in the United States, most important patents today are the property of large corporations capable of exploiting them.

Injurious practices, such as withholding beneficial patents that might make obsolete some widely used product or process, have developed. Other practices, such as acquiring all patents in a given field and granting manufacturing licenses only to firms that promise to refrain from effective competition, have been repeatedly attacked by the federal government under the antitrust laws (see trust ). Difficulties have also developed in the effective and equitable regulation of patents taken out by foreigners.

Bibliography: See F. L. Vaughan, The United States Patent System: Legal and Economic Conflicts in American Patent History (1956); B. W. Bugbee, Genesis of American Patent and Copyright Law (1967); C. MacLeod, Inventing the Industrial Revolution (1989).

patent A government grant to an inventor assuring him/her the exclusive right to exploit or sell the invention for a limited period (usually 20 years). Under the 1985 Guidelines for Examination in the European Patent Office, patent protection is available to inventive computer programs in Europe if the invention is expressed in terms of a programmed machine. Programs can be patented in the USA if they comply with the originality and other requirements of the US Patent Act. Inventive hardware is patentable in Europe and this leads to a serious flaw in the law; the same task can be performed by both software and hardware but the former is expressly excluded from protection by a clause in the European Patent Convention. The question of whether a program that performs the same task as a piece of patented hardware infringes the patent in the hardware has not yet been decided in Europe, nor has it been decided whether a PROM is a piece of software or hardware. Many of these inventions are now given a special type of copyright protection under new laws protecting chip masks. See also trade secrets.

pat·ent • n. / ˈpatnt/ 1. a government authority to an individual or organization conferring a right or title, esp. the sole right to make, use, or sell some invention: he took out a patent for an improved steam hammer. 2. short for patent leather. • adj. 1. / ˈpātnt; ˈpat-/ easily recognizable; obvious: she was smiling with patent insincerity. 2. Med. / ˈpātnt; ˈpat-/ (of a vessel, duct, or aperture) open and unobstructed; failing to close. ∎  (of a parasitic infection) showing detectable parasites in the tissues or feces. 3. / ˈpatnt/ made and marketed under a patent; proprietary: patent milk powder. • v. / ˈpatnt/ [tr.] obtain a patent for (an invention): an invention is not your own until it is patented. DERIVATIVES: pat·ent·a·ble adj. pat·ent·ly / ˈpatntlē; ˈpā-/ adv. (in sense 1 of the adjective).

PATENT

A patent is a legal document issued by a government granting exclusive authority to an inventor for making, using, and selling an invention. The invention must have a sufficient degree of newness, usefulness, or novelty to distinguish it from items with existing patents. To qualify for a patent, an invention may not merely be a substitution, change, or combination of items. In the United States inventions may include products, machines, methods, new uses, and even new forms of life as genetically engineered bacteria.

The exclusive authority granted is considered a barrier to entry, that is, something that prevents anyone else from copying or producing the invention without permission. By doing so, government hopes to encourage creative innovations by providing sufficient time for the innovator to recoup his research costs and realize profits. The inventor may manufacture, use, or sell his invention in a monopolistic atmosphere.

Each country has its own system of patents. In the United States, applications are made to the U.S. Patent and Trademark Office (PTO), and it takes up to two years to process. The patent is granted to the first inventor rather than the first person to make application, so inventors must document when they first came up with the idea. The PTO exhaustively checks previous patents to make sure of no duplications. If none exist, PTO sends a notice of allowance to the inventor. Upon paying fees, the patent is issued. The patent protects the invention for 17 years. A design patent, which covers only the appearance of an item, is issued for 14 years. A patent owner may sue on grounds of infringement to stop any copying of the invention.

The U.S. Constitution first empowered Congress to secure exclusive rights for inventors. At the beginning of the twentieth century, 82 percent of patents issued in the United States went to individuals and 17 percent to U.S. corporations. By 1962 about 28 percent of the patents went to individuals while 59 percent went to U.S. corporations, 12 percent to foreign entities, and two percent to the U.S. government. The sharp decline in individual patents could partially be explained by large increases in corporate research and development expenditures funded by both the federal government and private industry.

In 1992 the North American Free Trade Agreement (NAFTA) highlighted the continued importance of patents by requiring each member country to provide both product and process patents for all kinds of inventions.

See also: North American Free Trade Agreement

patent
A. in letters p., formerly also letters p—s, open letter from an authority recording, enjoining, or conferring something XIV; conferred by these XVI; protected by letters patent, as an invention XVIII;

B. (gen.) open, manifest XVI. In A — (O)F. patent, -ente (in lettres patentes) — L. patēns, -ent-, prp. of patēre lie open; in B, directly — L.
Hence as sb., by ellipsis of letters XIV.

patent a government authority or licence to an individual or organization conferring a right or title for a set period, especially the sole right to make, use, or sell some invention. Recorded from late Middle English, the word comes via Old French from Latin patent- ‘lying open’.
patent roll a parchment roll containing the letters patent issued in Britain (or formerly in England) in any one year.

PATENT

Open; manifest; evident.

In the sale of personal property, a patent defect is one that is clearly visible or that can be discovered by an inspection made by a person exercising ordinary care and prudence.

A patent defect in a legal description is one that cannot be corrected so that a new description must be used.

patent (letters patent) Privilege granted to the inventor of a new product or process. A patent excludes others from producing or making use of an invention for a limited period, unless under license from the holder of the patent. See also copyright

patent (pay-tĕnt) adj. open; unblocked. p. ductus arteriosus see ductus arteriosus.

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•applicant • supplicant • communicant •lubricant • desiccant • intoxicant •gallant, talent •appellant, propellant, propellent, repellent, water-repellent •resemblant •assailant, inhalant •sealant • sibilant • jubilant •flagellant • vigilant • pestilent •silent •Solent, volant •coolant • virulent • purulent •ambulant, somnambulant •coagulant • crapulent • flatulent •feculent • esculent • petulant •stimulant • flocculent • opulent •postulant • fraudulent • corpulent •undulant •succulent, truculent •turbulent • violent • redolent •indolent • somnolent • excellent •insolent • nonchalant •benevolent, malevolent, prevalent •ambivalent, equivalent •garment • clement • segment •claimant, clamant, payment, raiment •ailment •figment, pigment •fitment • aliment • element •oddment •dormant, informant •moment • adamant • stagnant •lieutenant, pennant, subtenant, tenant •pregnant, regnant •remnant • complainant •benignant, indignant, malignant •recombinant • contaminant •eminent •discriminant, imminent •dominant, prominent •illuminant, ruminant •determinant • abstinent •continent, subcontinent •appurtenant, impertinent, pertinent •revenant •component, deponent, exponent, opponent, proponent •oppugnant, repugnant •immanent •impermanent, permanent •dissonant • consonant • alternant •covenant • resonant • rampant •discrepant • flippant • participant •occupant • serpent •apparent, arrant, transparent •Arendt •aberrant, deterrent, errant, inherent, knight-errant •entrant •declarant, parent •grandparent • step-parent •godparent •flagrant, fragrant, vagrant •registrant • celebrant • emigrant •immigrant • ministrant • aspirant •antiperspirant • recalcitrant •integrant • tyrant • vibrant • hydrant •migrant, transmigrant •abhorrent, torrent, warrant •quadrant • figurant • obscurant •blackcurrant, concurrent, currant, current, occurrent, redcurrant •white currant • cross-current •undercurrent •adherent, coherent, sederunt •exuberant, protuberant •reverberant • denaturant •preponderant • deodorant •different, vociferant •belligerent, refrigerant •accelerant • tolerant • cormorant •itinerant • ignorant • cooperant •expectorant • adulterant •irreverent, reverent •nascent, passant •absent •accent, relaxant •acquiescent, adolescent, albescent, Besant, coalescent, confessant, convalescent, crescent, depressant, effervescent, erubescent, evanescent, excrescent, flavescent, fluorescent, immunosuppressant, incandescent, incessant, iridescent, juvenescent, lactescent, liquescent, luminescent, nigrescent, obsolescent, opalescent, pearlescent, phosphorescent, pubescent, putrescent, quiescent, suppressant, tumescent, turgescent, virescent, viridescent •adjacent, complacent, obeisant •decent, recent •impuissant, reminiscent •Vincent • puissant •beneficent, maleficent •magnificent, munificent •Millicent • concupiscent • reticent •docent •lucent, translucent •discussant, mustn't •innocent •conversant, versant •consentient, sentient, trenchant •impatient, patient •ancient • outpatient •coefficient, deficient, efficient, proficient, sufficient •quotient • patent •interactant, reactant •disinfectant, expectant, protectant •repentant • acceptant •contestant, decongestant •sextant •blatant, latent •intermittent •assistant, coexistent, consistent, distant, equidistant, existent, insistent, persistent, resistant, subsistent, water-resistant •instant •cohabitant, habitant •exorbitant • militant • concomitant •impenitent, penitent •palpitant • crepitant • precipitant •competent, omnicompetent •irritant • incapacitant • Protestant •hesitant • visitant • mightn't • octant •remontant • constant •important, oughtn't •accountant • potent •mutant, pollutant •adjutant • executant • disputant •reluctant •consultant, exultant, resultant •combatant • omnipotent • impotent •inadvertent •Havant, haven't, savant, savante •advent •irrelevant, relevant •pursuivant • solvent • convent •adjuvant •fervent, observant, servant •manservant • maidservant •frequent, sequent •delinquent • consequent •subsequent • unguent • eloquent •grandiloquent, magniloquent •brilliant • poignant • hasn't •bezant, omnipresent, peasant, pheasant, pleasant, present •complaisant • malfeasant • isn't •cognizant • wasn't • recusant •doesn't