Laying the Myths to Rest
A patent is a right granted by the State which confers on an inventor or his legal successor, for a limited period of time, the right to exclude others from using an invention, in return for the disclosure of the invention to the public.
By being able potentially to capture a large portion of the market to which the patented product relates, the risks of an inventor or a financial backer are reduced. The inventor or entrepreneur is thus more able to recoup the costs of the invention, including the development, production and marketing costs of the patented product. In this way, as a first objective, the patent system attempts to encourage research, development and capital investment and stimulate growth in the economy.
In return for this temporary monopoly, the inventor is obliged to make full disclosure of the invention to the public and, consequently, as a second related objective, the patent system also attempts to encourage wide dissemination of know-how and technology in making an inventor’s patent office file open to public inspection on grant of the patent.
Unfortunately, it has not always been recognised that the patent system was intended to or is able to accomplish these objectives. Until fairly recent times, patent law was familiar only to a small segment of our society and was considered as a somewhat esoteric part of our legal system. Some of the unfamiliar aspects of patent law are now examined to try to separate myths from facts.
It is widely believed that a Letters Patent document is "secret". This is not so. Full details of a patent’s so-called "secrets" are laid open to public inspection by the general public quite early on in the life of a patent, and a copy of the complete specification can be purchased by anyone, at a nominal cost. In fact, it is a statutory requirement that an invention be "fully described" in a complete patent specification so that a man of ordinary skill in the art can put the invention into practice. After all, this is the "deal" that the inventor strikes with the State; a monopoly in return for full disclosure.
If a patent document does not "fully describe" the invention or disclose the "best method" of performing the invention known to the applicant, the patent stands in danger of being revoked.
Furthermore, if any person or company wants to be kept informed of any granted patents which might be of interest, it is quite easy and completely legal for that person or company to institute a "patent watch" and to be so informed.
The fact that such watches are completely legal, or are even possible at all, is not generally known, which is surprising, as they are a good way of keeping abreast of the latest technology, and of keeping an eye on competitors without them being aware of it.
"Patent watches" can also be maintained over patents which have expired or lapsed. It is generally accepted that only five to ten percent of all patents granted have their renewal fees paid for the full possible term. It stands to reason that these five to ten percent must be the most meritorious or commercially rewarding inventions. Once again, it is completely legal to institute a "patent watch" and be informed of the expiration of these patents, and to obtain copies of the complete patent specifications. Much use can be made of this technology which has passed into the public domain.
Occasionally, powerful companies fall under suspicion in the light of allegations that they have bought inventions only to lock them away to protect the commercial interests of other products, or to prevent inventions from ever being exploited for the benefit of all.
Even if some of these beliefs are justified, the employment of such commercial tactics by big companies is highly unlikely to succeed. The South African Patents Act contains provisions relating to compulsory licences which are aimed at preventing anyone from "sitting" on a patent with the intention of suppressing it. Indeed, most of the countries in the world make provision for compulsory licences which allow interested parties to use patented ideas.
In South Africa, any interested person or company who can show that the rights in a patent are being abused may apply to the Commissioner of Patents (a Supreme Court judge), for an order for a compulsory licence.
The rights in a patent are abused, for example, if the invention is not worked in the Republic on a commercial scale within three years of the patent being granted. The rights in a patent will also be considered to be abused if it can be shown that the demand for the patented article in South Africa is not being met to an adequate extent and on reasonable terms.
Of course, the owner of the patent would receive royalties for that licence, but the terms of the licence would be decided by the Commissioner of Patents who is obliged to consider all the relevant facts. The fact that the patent holder was unwilling to grant a voluntary licence would therefore be a consideration. The terms of the licence would therefore in all likelihood be more favourable to the applicant and, in awarding costs for his trouble; the Commissioner of Patents would consider whether the application for the compulsory licence might have been avoided if the patentee concerned had granted the applicant a voluntary licence on reasonable terms in the first place.
There are also many stories which are told how big business "steals" inventions from helpless inventors.
One of these stories relates to an inventor named Jim Hargreaves who invented the "Spinning Jenny". The "Spinning Jenny" was invented by Jim when his young daughter, who was actually named Jenny, accidentally knocked over her mother’s spinning wheel. Jim noticed that although the spindle was now upright, it continued to operate in that unusual position.
Jim was obviously quite excited to observe this strange phenomenon and had heard stories of a neighbour who had made a great deal of money from an invention in the textile industry known as the "Flying Shuttle". Jim set about making a frame which incorporated eight upright spindles driven by just one wheel. This machine did the work of eight people using eight single spinning wheels. The capacity of the machine was later increased to thirty spindles and it soon became apparent to Jim as to the commercial potential of his invention.
At this stage, Jim made a fatal mistake in selling his machine in order to make enough money to patent his machine, which sometime later he actually tried to do.
Later, in hindsight, Jim would ruefully appreciate that the law of patents requires that an invention must be new at the time a patent is applied for, and this, unfortunately for Jim, later allowed his patent to be challenged successfully in Court, due to his "Spinning Jenny" being in commercial use before he applied for a patent.
Jim had accordingly destroyed the novelty of his invention by his own hand and it could accordingly not be considered new for patenting purposes. So, rather than being a case of big business "stealing" the invention from Jim, it was a case of his own ignorance of the patent law which was his undoing.
It was also often said that patents owned by international corporations are used to prevent the growth of small and medium sized companies. In today’s economic climate, fewer and fewer enterprises are able to bear the costs and risks of research and development. In particular, pharmaceutical companies claim that they must be protected by patents as it is easy for generic drug companies to manufacture and market successful drugs. It is, however, not the patent system which makes it difficult for small or medium sized companies to carry out research, but the necessity for high levels of investment and the fact that smaller companies cannot normally afford the risks involved. Many thousands of pharmaceutical compounds are tested by drug companies, and only a few of these are ever considered worthy of patent protection.
It is true that a lack of finance can prevent a successful inventor from successfully marketing or exploiting the invention other than through licensing, but if this inventor has patents protecting his invention, his or her position with respect to large companies is improved, since there is a much better chance of coming to a satisfactory agreement with such companies regarding the industrial exploitation of the invention.
It is suggested, therefore, that small and medium sized enterprises will grow faster if any research activities undertaken by such companies are protected by patents. The cost today in South Africa to obtain patent protection for an invention can range from R2 500.00 to R6 000.00. In addition to this, there is a nominal annual renewal fee.
Against these costs, are the enormous costs of research and development which can run into millions of rands. Surely it must be sensible to protect this expenditure by obtaining patent protection at a relatively small extra cost. The real question therefore for small or medium sized companies is whether they can afford research and development activities at all.
Finally, the last myth that should be laid to rest is a misbelieve that inventions have to be "clever" in order to be patentable. Some people regard their own inventions as being unworthy somehow in view of the invention’s simplicity. This may perhaps be the largest single reason why so many prospective inventors throw away a chance of success. They incorrectly believe the word "invention" to mean "high tech" or something beyond the level of their own ideas or capabilities.
Perhaps it is because the well known and simple inventions are taken for granted. Has anyone stopped to consider how the safety-pin was invented, or what inspired the inventor of the ball-point pen? Perhaps these simple inventions are considered to be rarities. A carpenter would have no doubt that the forked claw on the end of his hammer is an extremely useful invention, so too a ring spanner for a mechanic or a circular styling brush for a hairdresser. Someone had to invent these items.
The Royal Air force had so little faith in Frank Whittles’ jet engine proposals that they allowed his patent to lapse. Many inventions which are now universally accepted have passed through a period when only the resolute stubbornness or blind faith of the inventor has enabled them to survive.
An inventor’s enthusiasm can only be dampened if myths are blindly accepted, and it must be worthwhile, particularly when we need growth and stimulation in South Africa’s economy, to examine any way of encouraging our natural inventive skills, because apart from being rewarding both mentally and financially, the world of innovation can be extremely exciting.
Spoor & Fisher