Stuff You Should Know - SYSK Selects: How Patents Work

Episode Date: September 1, 2018

What was originally designed to encourage innovation by rewarding the people who create technological advances, the U.S. patent system has become a big mess. Wade into this surprisingly interesting mire to learn how to save this important institution. Learn more about your ad-choices at https://www.iheartpodcastnetwork.comSee omnystudio.com/listener for privacy information.

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Listen to Frosted Tips with Lance Bass on the iHeart radio app, Apple Podcasts, or wherever you listen to podcasts. Hey everybody, it's your old pal, me, Josh. And I am here to bring you today's S-Y-S-K Selects episode called How Patents Work. It sounds like it will make your eyes bleed out of boredom, but do not get it wrong.

It's actually one of our most interesting episodes ever. And it is seriously, sincerely, honestly, everything you could ever possibly want to know about patents. And I would guess that we've never said the word patent more than we do in this episode. So enjoy it. It's from November of 2014. Take a little time to learn about patents.

Welcome to Stuff You Should Know from HowStuffWorks.com. Hey, and welcome to the podcast. I'm Josh Clark. There's Charles W. Chuck Bryant. And this is Stuff You Should Know. There's Jerry, too, by the way. Hi, Jerry.

Who's ready for January? Me. Yeah, 2015. You ready for a new year? I'm ready for this year to be done. Yeah. I think it's been kind of a cool year. No, it's been fine.

I'm just, I'm tired. I feel I'd be much more rested in 2015. It's October, you know. We've got a little ways to go. I know, and this is my favorite month, too. Just kind of a drag. A drag? I'm so tired.

You hippy. You're going to start saying far out next, aren't you? It is far out. So, Chuck. Yes. I'm very curious. Do you have any patents to your name? No, man.

I don't have an inventive mind. I don't either. My brother does, and he's had some good ideas that have later been made into inventions. Why didn't he patent them? I don't know, man. Every time I see a new one, I send it to him and say, hey, I remember when you had this idea 12 years ago.

Scott. Yeah. What are you doing? I know. Well, he's got a bunch of pinball tables, so he's doing all right. Yeah, he doesn't own the patent on them, though. No, but he could.

You know why? Because it's America. That's right. So it turns out, Chuck, in doing a little bit of research, that there's mention of patents and patent protection in the Constitution. Yeah, dude. Not even the Bill of Rights.

Freedom of speech isn't even mentioned in the Constitution. It's in the Bill of Rights. But patent protection is in the Constitution. Article 1, Section 8, Clause 8, which is known as the Intellectual Property Clause. And it says, quote, Congress shall have the power, ellipse, to promote the progress of science

and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. And since this is the late 18th century, a lot of that stuff is just randomly capitalized, like a sixth grader wrote it or something. Right. My apologies to all of you sixth grade listeners out there

who know your capitalization. They're like, we love proper now. So it's in the Constitution. If you invent something that's new and novel and cool, we think you should have some sort of government-sanctioned monopoly over that, at least for a limited amount of time. You know why? Why?

Because very early on, the United States said we want to encourage inventiveness and forward thinking and entrepreneurship and great ideas. Yeah. They were on board pretty early, even though it's sort of a mess these days, which we'll talk about it gets in the end. Oh, yeah, we will.

Yeah. But yeah, the whole purpose of a patent system. And apparently, it's one of the hallmarks of the modern society, I guess, is to have a patent office. It says we value innovation. We value technological progress, artistic progress. And we're going to show a commitment to that by basically saying you have, again, I guess the best way to put it

is a monopoly on your invention for a limited amount of time. And it harkens back. Apparently, the first patent was issued in 1449 in Jolly Old England by King Henry VI, who gave it to a guy who didn't even have a last name. Well, yeah, sure. Of Utnam is not a last name. That's where you're from.

Yeah, but that served as a last name. I'm Josh of Toledo. I'm just saying this is medieval. It's not the 16th century. No, it's not. So John of Utnam got a patent from King Henry VI for stained glass manufacturing. Yeah, back then, patents in England

it was a little bit different. It was more like, hey, we want to protect the crown in our country. And our good friends. And our good friends of the crown. And make sure that if they have an idea that we can go after anyone else in any other country, even if it's something like stained glass that's already

clearly being done in places like Italy. Right. It was basically like, you now officially are the only person who can make stained glass. It was a bit of a sham. Yeah, they would give out patents not just on an item or an idea or an invention, but like a whole industry. So somebody held the patent on the publishing industry

for a while. But apparently it got out of hand because it was just royal prerogative left and right. Yeah, it didn't last that long, though. By the 1624, they started to pass statutes and laws to try and curb that abuse of power any way they could and make it a little more like the patent system that we know and support today.

Yeah, they were like, the crown can't give out patents unless it's for a new invention. So yeah, that is very similar to what we have today. So right off the bat, America is like new country. We're setting up a patent office. And the first person to get a patent in the United States was one, Samuel Hopkins. Hopkins is the last name.

Not Samuel of Pittsburgh. No, Samuel Hopkins. Pittsburgh, Vermont, that is. Yeah, he got a patent for an improvement in the making of potash. Is it potash or potash? I don't know. I said it eight different ways in my head earlier.

Well, one of those is right. Yes. And so he held the first patent, actually. And the person that reviewed his patent was a man named Thomas Jefferson. Yeah, he was big on innovation, as was Lincoln. And Lincoln is the only president to actually hold a patent.

He got a boat stuck one time in a river and said, hey, that'd be neat if we could find a way to not get boat stuck. So he devised a system to unstick boats when they were stuck on a sandbar, if the river was too shallow or something. Yeah, by inflating some buoys that would just basically let you float over. And they were like, President Lincoln, that's a great idea.

Here's your patent, sir. Well, he was a congressman at the time. But yeah, he's the only president to hold a patent. And then Jefferson handled the application process for a while before passing it off to other cabinet members. And then eventually they're like, this is all out of hand. We need to establish our own patent office. And they did so in 1802.

Yeah, I think they grossly underestimated the number of patent applications they were going to receive. People got their invention on. Yeah, the first patent that Samuel Hopkins received, Jefferson examined, he signed it. He gave it to the secretary of war who signed it, who then passed it under the attorney general who signed it,

and then President George Washington signed it. So that wasn't a sustainable process. And then Chuck, there's like tons of millions of patents. I think like 5.7 million patents. Tons of millions. Yeah, 5.7 is a ton. Yeah, it is. Anyway, there was this notable one

that I think is kind of hilarious. Mark Twain, a beloved American humorist. I'm sure. He invented, who doesn't like Mark Twain? Man, there's a lot of Twain haters. Well, he invented the elastic bra strap. Oh, really? Yeah.

I wonder why. He invented an improvement in adjustable and detachable straps for garments, which he suggested could be used for pantaloons or vests or other garments. Oh, sure. But basically, if you look at it, you're like, that's a bra strap.

Yeah, I bet that the old sock garter benefited from that one idea. I would guess so. Huh, did he invent other things, I wonder? Yeah, he also held two other patents. One for... Witty banter. A game.

He invented a game to help players remember important historical dates. Okay. I don't think he ever saw a dime on that one, I'm sure. Yeah. And then a self-pasting scrapbook, which wouldn't become huge until the 90s. Yeah, I know what self-pasting means.

Uh, I don't know, it was already sticky. Yeah, like the photo albums. You peel back the plastic and that sheet underneath is sticky. It uses static electricity. No, it's actually sticky, too, isn't it? I think it's static. Is it sticky?

I think it's sticky. I haven't looked at a photo album in a while. Well, I'll have to go to, I don't know, the Hallmark store and check one out soon. Let's do it. Well, we were going anyway, so. So, I know the new Christmas ornaments are out. So, Chuck, let's talk patents, man.

Yeah, I had this idea because I'm a big fan of Shark Tank, the TV show, and there's a lot of patent talk, and I was watching it the other day, and they said, well, we have the utility patent, but not the design patent. And I was like, I gotta look this stuff up, see what all that means. And, well, we'll get to that in a second,

but let's start out, and we'll probably do shows on maybe copyright and trademark at some point. Maybe they're worth mentioning here, though. Yeah, copyright, those are all forms of intellectual, or protecting your intellectual property. And copyright is the easiest and most broad and wide-reaching and longest-lasting form. Because you can just write something, and it's yours.

Automatically, in the United States, at least. And it lasts for your lifetime plus 70 years. Not bad. No, and literally, once you, like, Chuck, if you write a short little story, you can write when you finish, you can write C, put a circle around it. Chuck Bryant, 2014, and you have your official copyright.

That's right. Like, that's it, legally, you're done. Just because you created a work of authorship. Yep. And that's pretty great. If you're a company and you've done, have a copyright as a company, it lasts up to 120 years. Depending on whether they publish it or not.

Right. Yes. But that's, eventually, it does run out, and then it can be shared, and other people can make money off of it. Like, for example, old HP Lovecraft stories. Like, you or I could take a bunch of Lovecraft stories. Say we wrote them.

Type them, put them together, and publish them, and sell those books. Really? Yes. Like a collection? You don't have to get any kind of permission for that? Nope. It's in the public domain at that point,

and it belongs to the world. That's right. Well, we read every Halloween, we have to read something from the public domain. I know, because it's really expensive to do otherwise. It is. Trademarks are a little bit different. They're a lot more narrow in what they protect,

and they protect designs and phrases that businesses use, or maybe trade secrets, like a formula for a soda. Those are different. That's its own thing. Yeah, but that's still a trademark. Is it? Yeah. I thought it was separate from a trademark.

I don't think so. This article says it's a trademark trade secret. Well, with a trade secret, it can be beneficial to keep something under wraps as a trade secret, because if you have something that you patent, you're protected for 20 years in the United States, your patent is, but part of the patent processes we'll talk about is to publish it.

You make it every detail of it public. So then after 20 years, when your patent runs out, anybody can go and look at your patent and recreate it, and not give you a cent for it. If it's a trade secret, as long as no one discovers the, say, secret formula for Coke by accident. Or by being this American life and rooting it out. Right, and then, yes.

So Coke could sue this American life for damages, but once it's out in the public, like it's no longer a trade secret, and other people can use it legally. The other way you can do it is to take Coke and reverse engineer it, and come up with the formula successfully that way. That's not protected by trade secrets.

Right. But then, I think Coke diffused that well though. They were kind of like, great, good luck. Yeah. Supposedly they keep it in a bank vault here in Atlanta. Oh, really? Yeah.

Isn't that cute? Sure. And then the last one is a service mark, which is like a trademark for a company that provides services rather than products. So like if you're a plumber, you might have an SM next to your logo. Right.

Those are the different types of intellectual property protections afforded in the United States, Chuck. But the final one, and the one we're discussing at length is the patent, and that is a copyright for an invention. And the US patent law defines that as, quote, any new and useful process, machine, manufacture, or composition of matter,

or any new idea and useful improvement thereof, end quote. And that is, well, we'll get into all that, but the wording there is sufficiently vague and specific because when you're talking about inventions, it's gotta be a little bit vague. Yeah. Because you don't have it all worked out, maybe. No, because with the copyright, for example,

what you wrote down is protected. Right. The sentence structure, the paragraphs you used, the wording you used, that's protected. The thoughts that it's getting across about the little puppy who got lost and came back home and everything ended really well, like the idea of a puppy getting lost can't be copyrighted.

With a patent, it's the reverse, like the actual invention, like the platform shoe with the goldfish tank and the heel that you invented, right? Yeah. You can't defend that actual tangible shoe, but the idea, the design of that shoe, that's what a patent protects. Yeah, and you can't steal, it gets a little tricky

with things like writing or like movie ideas. You can't steal someone's idea. Like there could be two movies about lost puppies, but if you could somehow prove that you met someone in a meeting and pitched them this idea for the lost puppy and then six months later, they came out with a script for a lost puppy, you might have a case that they...

I don't know, man. No, it happens all the time. Okay, but think about deep impact in Armageddon. Let's go back to that well. Well, now I know that's what I'm saying. You can have two movies, there are lawsuits every day filed on Hollywood over stolen intellectual ideas,

but whether or not it's successful is whether or not you can make your case. Depends upon each one. That's a good point. So the first thing, if you want to patent an invention, is that you have to, well, it has to be sufficiently novel is what they say. So it can't be, I mean, it can be similar to other things,

but it has to be different enough to something that's already patented or been published in a publication to grant the patent. Yeah, because if this, that's a really key point. If the, even if you invented something, right? And let's say you wrote about your platform shoe with the goldfish tank and the heel, right? If you wrote about it and don't file a patent application.

If it was published. Yes. Within a year, you can't file a patent after that. Yeah, that's why the first thing you need to do is file the patent. Right. Like no one invents something and writes all about it in the Washington Post for a year.

And it says, maybe I should patent this. Exactly. So that's your first step. Right, and so that's what makes it novel. It's new, it's a different idea. And like you said, you can be taking different things that already exist, but putting them together in a new way that people hadn't thought of.

Or that wasn't what's called obvious. So the invention also has to be non-obvious. Yeah, and that's what most inventions these days are, are improvements on things that already exist. Like there are new inventions, but a lot of it, like the great example they use in 1977 when Jerome Lemelson invented or got patented the idea of the camcorder, it was so absurd at the time,

people were like, you can't record a video and sound at the same time. Just that's denied, that's just silly. Get out of here, Lemelson. And he said, actually, no, that's kind of a good idea and it's super easy to do, because all I have to do is tape the tape recorder to this camera. Which is probably what he did.

And he was able to get the camcorder patented, of course. And now if you go to the patent office and do some research, there are probably thousands of patents that have to do with the camcorder. Gotcha. Each individual little piece that someone innovates, they can patent, like night vision on it, or a light attached to it.

Right, exactly, but you couldn't say, I'm gonna patent a camcorder, this other guy's camcorder idea, but it'll be green. Because that's an obvious change. Or this article gives the example of like a toaster. Like you couldn't patent a toaster that has an extra two slots for bread, because anybody could think of that.

Exactly. That's obvious, that's to be non-obvious. That's just a bigger toaster. And then there's also useful. Useful is kind of the last of the triumvirate for what makes a patentable item or invention. And it has to be something that works. So like the example given in this article

is like you couldn't patent a random configuration of gears. Because it doesn't do anything. It doesn't work, it's not useful. But if those gears transported as a new way of transporting something from one place to another more efficiently maybe than you could. Patentable.

Patentable. And then in the same vein, something that apparently the patent office interprets, something that can be used strictly for immoral purposes, that they consider that non-useful. Because at the end of the day, the patent office is supposed to be doing this for the benefit of society. So I guess they feel that they also can morally interpret

things as well. Yeah, what is that? You can't patent like a whiskey still in your bedroom? No, I don't know. I think it'd be more harmful than that. Like maybe a doomsday laser that only works on children who haven't done anything to anybody. But the doomsday laser for bad kids is great.

You see my point. Patentable. That was a great example if you ask me. And then similarly, your device has to be able to be to not just work like, yes, you could say, well, this random configuration of gears will work. Why can't I patent it? Because it's not useful.

In the same vein, you can't patent like a time machine. Again, the example they give, this article is lousy with great examples. Yeah, like we tried actually to get our way back machine patented and they said, guys, that's real cute. They're like, that's basically just sound design. Thanks for wasting your time. We could probably trademark it, though.

Although I'm sure the good people who made Rocky and Bullwinkle would sue us. Yeah, sue ourselves. The patent in the United States, and I apologize that this is not patents all around the world, but we don't have like 80 hours to research each country. Again, any modern developed country typically has a patent system.

Yeah, and good advice. If you have something that you think could be used internationally, you need to get patents in all the countries you fear might rip it off. Right, because your patent that you've received in the United States protects you in the United States.

That's it. Not Canada, not Japan, not Mexico, not China, not anywhere. For 20 years these days. That's how long your patent will last. That's right, Chuck. It used to be 17. And I can't remember when they changed it, but it wasn't too terribly long ago,

within the last couple of decades, I think. Yeah, and actually, well, we'll go over the types of the patent real quick too, because one of those, the design patent is only for 14 years, unless that's changed. Design patent, you'll hear that on Shark Tank all the time. That is something like if you designed a new chair, like an IKEA chair, it would be design patented.

You can't go and rip off that chair. Oh, but the idea of a chair itself isn't patentable. It's just this configuration of the chair concept. Right, or Steve Madden will design a shoe. I got you. And Steve Madden can put a design patent on that shoe, even though it's a shoe. You can even patent the sole of a shoe,

if it's some innovative new tread. Or for a tire that channels water away or something like that. Exactly. I don't think those are design patents, though. I think that would be a utility patent. But design patents are enforced for 14 years utility patent. There are five categories there. It can be a process, a machine, a manufacturer,

a composition of matter, or an improvement on an existing idea. And it might fall into a certain category, like more than one, but it'll only be patented for one of those categories. But it's covered, and that lasts for 20 years. So basically, you're the coffee maker that also makes an egg and toast at the same time? That would have gotten a utility patent, right? Yeah, does that exist?

Yeah, nice. Emily said the best egg she ever had was at a cafe in Utah, where they cooked them using what you use to heat the milk. That sprays out the steam. They were steam cooked. Weird. Yeah, like to make an espresso. They would put the raw egg as if you would make an espresso

and cook the eggs with that steam. I've never heard of that. I never heard of that either. And then there's the super weird plant patent. And that is granted for any asexually or sexually reproducible plant or flower that is novel and non-obvious. Yeah, that's kind of a big one, because there was, and in Australia, this is the way it is.

But in the US, it was up in the air for a little bit, that people were worried that naturally occurring genetic sequences could be patented. So we're basically, some company could be like, hey, we now own your genes. And you can't do anything with them, even to save your own life, unless you pay us. In Australia, one of their federal courts said, yeah,

we're totally down with that, which is crazy. In the United States, I think in 2014, the Supreme Court said, nah, we're not doing that. You can patent, if you can figure out how to manipulate genes to make them do something that doesn't naturally occur, knock yourself out. Totally patent that. Like for example, Monsanto seeds that prevent themselves

from reseeding or creating more seeds. Yeah, or some new strain of tree that's hardy against some kind of insect. You can patent that. But you can't just go out and patent an oak tree. No. Or a human gene. No.

You can in Australia, which you should not be allowed to do. But in the US, you can't do that. And that was a big load off of, I think, a lot of people's minds, including mine. Well, that's good. I'm glad you can sleep tonight. I'm feeling great.

Plant patents are good for 20 years as well. So I don't know why I designed patents for only 14, but maybe they just want to encourage more design. No, nobody values design like they should. That's the problem. As far as we mentioned Jerome Lemelson, and as far as inventors go, he ranks second to Thomas Edison in number of patents in US history.

Not necessarily number of inventions, though. A lot of people would point out. Yeah, he's a pretty controversial guy. Some people see him as a philanthropic genius. Oh, I'm talking about Edison. Oh, no, no, I was talking about Lemelson. Yeah, he's controversial himself, too. Yeah, because he has accused a lot of people

of creating what's called submarine patents, which are basically a patent that you sit on even and knowing that there's something just like that being developed, and you don't let anyone know, and you just hope it doesn't get their attention. And then later on, when it's huge, you come out and say, hey, you owe me a ton of money because I have this 17-year-old patent.

Yeah, no, this Lemelson is basically what you're talking about is a form of patent trolling. That's right. And he does definitely stand accused of that, or we should say his foundation stands accused of that. But Samuel Lemelson was, incontrovertibly, a genius inventor who definitely did come up with a lot of really great ideas that we all use.

Right, things like the camcorder, things like barcode scanning, like just like basically the modern world, a lot of it came out of Lemelson's head, Jerry Lemelson's head, right? But you are right. His foundation has racked up like a billion dollars in licensing fees and court awards from these kind of lawsuits and litigations

until they ran up against one where it was like, I think a barcode scanning case, a couple of them got put together. And then they were added onto like seven others. And the judge in the case found that basically this, even though there isn't necessarily statute of limitations, a reasonable statute of limitations had run out on the time between when barcode scanners came

out and the time they filed the lawsuits. And they used the term submarine patents in this article and said, times basically run out. These things belong to the world now. And sorry, Lemelson Foundation, you're not going to get this money. Interesting. There was something passed in 1995 called TRIPS agreement,

agreement on trade-related aspects of intellectual property rights. And that was supposed to kind of curb submarine patents, but they'll still pop up every now and then. I think Tevo reared their head. I think I saw something about that. I don't know the details, though, with the submarine patent saying, hey, everyone with a Comcast DVR,

we actually invented that whole technology. Oh, yeah? Yeah, I'm not sure how that all panned out, though. I didn't get to look into it any further. But it's interesting. Well, let's keep at it, but we'll start again right after these messages. Stuff you should know.

On the podcast, Hey Dude, the 90s called David Lasher and Christine Taylor, stars of the cult classic show, Hey Dude, bring you back to the days of slip dresses and choker necklaces. We're going to use Hey Dude as our jumping off point, but we are going to unpack and dive back into the decade of the 90s. We lived it, and now we're calling on all of our friends

to come back and relive it. It's a podcast packed with interviews, co-stars, friends, and nonstop references to the best decade ever. Do you remember going to Blockbuster? Do you remember Nintendo 64? Do you remember getting Frosted Tips? Was that a cereal? No, it was hair.

Do you remember AOL Instant Messenger and the dial-up sound like poltergeist? So leave a code on your best friend's beeper, because you'll want to be there when the nostalgia starts flowing. Each episode will rival the feeling of taking out the cartridge from your Game Boy, blowing on it, and popping it back in,

as we take you back to the 90s. Listen to, Hey Dude, the 90s called on the iHeart radio app, Apple Podcasts, or wherever you get your podcasts. Hey, I'm Lance Bass, host of the new iHeart podcast, Frosted Tips with Lance Bass. The hardest thing can be knowing who to turn to when questions arise or times get tough, or you're at the end of the road.

OK, I see what you're doing. Do you ever think to yourself, what advice would Lance Bass and my favorite boy bands give me in this situation? If you do, you've come to the right place, because I'm here to help. This, I promise you. Oh, god. Seriously, I swear.

And you won't have to send an SOS, because I'll be there for you. Oh, man. And so will my husband, Michael. Um, hey, that's me. Yep, we know that, Michael, and a different hot, sexy teen crush boy bander each week to guide you through life, step by step.

Oh, not another one. Kids, relationships, life in general, can get messy. You may be thinking, this is the story of my life. Just stop now. If so, tell everybody, yeah, everybody, about my new podcast and make sure to listen, so we'll never, ever have to say. Bye, bye, bye. Listen to Frosted Tips with Lance Bass on the iHeart

radio app, Apple Podcast, or wherever you listen to podcasts. OK, so Chuck. Yeah. You want to talk about Edison, some? Yeah, I said Jerome Lemelson was number two with 557 patents held in the US. But Edison eclipses that with 1,093 patents. And he had it set up in Menlo Park, New Jersey,

that was just like the idea factory, basically. Which, ironically, is unrelated to the Menlo Park US patent and trade office out in California. Oh, really? Yeah. It's just coincidentally named from what I understand. Interesting. I never do that connection.

He, when he set up the Menlo Park, he hired a bunch of really bright people and said, let's come up with one small invention every 10 days, one major invention every six months. And I'll put my name on all of them. Exactly. And if your hackles are raised right now, go back and listen to our Nikola Tesla episode,

which is a good one. Edison was a smart guy in many ways. He was quite a good promoter, like the light bulb. He's frequently credited with inventing the light bulb. A lot of purists will point out, like, no, he didn't really invent the light bulb. He took a lot of other innovations that were incandescent light related.

And he figured out how to put them together into what we understand now is the light bulb. Well, yeah, but that's an invention. Yeah, it is. According to the patent office. And he went and got the patent. And now everybody says, Edison invented the light bulb. And I like that, too, because, you know,

that's kind of the whole point of patents, is this stuff is available to the public to look up. And that was one of the original reasons they made it public, is so people could look up other people's ideas and build upon that. Right. That's one mark in favor of patent offices in the patent system in general, is that it's a way

to disseminate scientific information. Yeah, and encourage growth and inventiveness. Right, and the way it does that is by offering an incentive for inventors to invent, because that can be a very long, arduous, heartbreaking experience inventing. And if you're going to do that and go to all the work of research and development,

and then right when you come up with it, somebody can just come along and mass produce it, then you're not going to have any incentive to invent anything. You're just going to go off and work on a road crew or something instead, because it's probably a lot more satisfying at the end of the day. Yeah, and you can't just go to the government

and say, hey, you need to look into this guy. They stole my idea that I have patented. The government will be like, I don't care. Well, they may care. That's a little callous. But they say, that's not our job. You can go and take someone to court if you want to challenge this, but there is no government agency that

patrols the patents infringements. No, it's up to the patent holder to monitor and police their own patents. Which they are big on. So let's talk about the courts a little bit. Like 20 years ago, if you held a patent and you took someone to court for infringement, the courts typically sided with the infringer.

There was, I guess, kind of either a thought that you are stifling innovation if you're just kind of suing people over patent infringement, you know? Or else they just didn't view patents like they do today. Nowadays, it's going to the other extreme where the courts rule in favor of the patent holder so frequently that a cottage industry of what are known as patent trolls sprang up. Where you have groups of people or companies or individuals

who just go around either applying for patents that are really abstract and really shouldn't have been approved. Yeah, very vaguely written. Right. And they're typically software related too, because I think there's a sentiment that the US Patent Office doesn't fully grasp software and the internet and IT and that kind of stuff.

So you either go and file for and get a patent on something really overly broad and vague. Or you buy a bunch of other people's patents and you just start, for the whole purpose of going to people and saying, you're infringing on these patents that I now own, give me some money, I'm going to take you to court. It's a business unto itself. It is.

The problem is, is because the courts move so far in favor of patent holders that people would settle out of court to avoid litigation. And so as a result, this whole cottage industry came up. And then recently, there's been some steps taken to kind of reform that a little bit. There was something called the Innovation Act. Oh, yeah?

The Innovation Act passed the House, was sent to the Senate. It was in the Senate Judiciary Committee. And then Senator Patrick Leahy killed it. And the tech community, who's really big into patent reform, accused him of being in the pocket of the pharmaceutical companies. That would never happen in this country. Who are really big into preserving the status quo.

And if you really look at what's going on with patent reform today in this argument, Chuck, you've got the pharmaceutical companies versus the tech industry. The tech industry is like, things are moving so fast. And there's so many ideas coming out that we can't focus on patent infringement. It shouldn't be as big of a deal because it's stifling innovation.

There's people here that are scaring people from licensing computer software because this guy says that he has a patent that says you could put software onto a CD-ROM and sell it. That's the kind of patent role thing. On the other side, the pharmaceutical companies say, hey, man, we make tons of money licensing our patents. And so if people are afraid of infringing on patents

because they can get sued, then our investments, our portfolio of patents, are going to be protected. So there's these huge behemoth lobbies like hammering it out right now in the halls of Congress. And it seems like the Supreme Court and the federal government are siding on the tech side. Yeah, you sent that great article from Forbes about just the problems with the modern patent system.

And that was one of the great points. I can't remember who wrote the article. The guy who found a Priceline J. Walker. Really? Yeah, he said that people are so scared companies are these days of infringing on patents because if you can prove that you knew about this patent, then you could be in big trouble.

So they're not even looking, which is the original idea of making these things published, is like I said earlier, is so people would go and look up how someone did something. Maybe I can improve upon that. So people aren't even looking now because they're afraid that it'll be traced back and be like, no, no, no. We know that you saw this patent pulled three years ago.

Yeah, because the penalties for accidental infringement and willful infringement are vastly different. Yeah, it's a big problem. Well, the J. Walker suggests that you cut the courts out and maybe make it easier to license things. So just create some big national exchange where somebody can go and easily give somebody some money or temporarily license whatever they need.

And he cites some, I think, a forest research study that suggests 95% of the 5.7 million patents that the US has granted. 2.1 active patents. OK, 95% go unused and unlicensed. And of those, approximately half a million are considered to be high quality patents. Yeah, a lot of them are from university research and they just sit there.

Yeah, and so protected. The same study found that $1 trillion of revenue is not generated each year in the United States because of this unused innovation that's just sitting there in this big pot. Yeah, a big guarded vault with a pot in it of unused ideas. Yeah, which definitely goes against the spirit of the original idea.

For sure. Yeah, which means the system is broken. It is broke. The other way that it's broken, too, is the enormous backlog that's going on at the patent and trade office. Oh, and just getting it reviewed. Yeah, so if you file a patent, and we're

going to talk about this in a minute, but if you file a patent, Chuck, and they reject it, that is not the end of the story. You can keep coming back and back and back and back. In fact, you usually will get rejected on the first try, for one reason or another. Right, but every time you come back, you add to the PTO's already big backlog, right?

Yeah, of course. And so apparently, there was another study that Ars Technica wrote about or carried out that found that there was a huge decrease in the backlog under the Obama administration. But they suspect that it was because the PTO lowered their standards and issued patents for a lot of shoddy patents just to get people to go away, to clear the backlog.

Because that's the best way to get rid of somebody who keeps refiling their patent is to just grant them the patent and get them out of your hair. Well, they're saying, yeah, that decreased the backlog, but it led to a lot of shoddy patents, which in turn led to the patent troll industry. Yeah, and a lot more burden on the courts to suss all this stuff out later.

Exactly. The problem is the patent office has an incentive to keep letting people file and file again, because they make money every time. They generate revenue from that. Yeah, it costs, I mean, the actual patent itself will cost you five, seven hundred dollars or so, that you have to upkeep every year

and pay a little bit more in maintenance fees. Yeah. Well, it depends. Have you seen the fee schedule? Yeah. There's like 30 or 40 different things you could pay fees for. Well, yeah, it all depends on how detailed your patent is

and what you're trying to get through. Yeah. All right, well, let's talk about what you can and can patent. We've talked a little bit about it. You cannot patent something that exists in the natural world, like a discovery, like they give another great example, Einstein's Law of Relativity. He can't copyright that or patent it.

Right. I mean, it's a thing. And he might have named it and figured it out, but it occurred long before Einstein was around, just in the solar system. It belongs to the universe. It belongs to the universe. Yeah.

That's a good way of saying it. You can patent like an industrial process. Like we said, computer programs, you can, but it gets a little dicey. And if you have something that you think might be patentable, patentable? Patentable or not? The first step you probably should

is hire an agent or an attorney, an agent or a patent attorney. Yeah, and a lot of people do. And this is if you're serious about this stuff. Like you really think you're onto something. This is something you do not just, hey, you got this idea for a thing. You're not going to want to spend thousands and thousands

of dollars unless you really think you're onto something. Right. So the first step, you want to talk about the steps of patenting something? Yeah, I guess so. The first step you can do is to do a search yourself. I think Google even has a search function to search patents in the United States easily.

But if not, you can definitely go to the US Patent Office site and search you some key words to kind of generally describe what your invention is to just see off the bat if there's already something out there that's patented. And there probably is. Yes. It's very rare to have a truly, truly unique idea these days.

But if you have something and you're like the guy who made the thermonuclear fusion reactor in his garage, a 16-year-old, if he wanted to patent that, there's probably a pretty good likelihood that he could get that patent. And then it's going to be worth a ton of money. So we're going to take that kid and run him through the patent process because it's

going to pay off for him in the end, despite the enormous amount of money that he's going to have to spend up front just to get the patent protection in the United States. Right. So he searched the database. Let's say he went to the office in person because that's what kind of kid he is.

And he looked through the files and he found, you know what? I think I'm onto something. I don't see anything else in here that's super like it. I feel like it's novel and it's innovative and it's non-obvious. And so there's a lot of money on the line here. So I'm going to hire a patent lawyer who patent agents aren't attorneys.

They function similarly, but an attorney obviously has a little more power under their belts. Well, they have a technical degree, typically, and a law degree. Yeah, the agent just knows about the patents. They don't have the law degree. They have the technical expertise. Because you have to be able to look at the actual invention

and understand how it works or if somebody's just trying to pass off something dumb. Like you're not a divorce attorney and a patent attorney. You might be, but probably not. There's probably one out there. So a patent lawyer will review everything and say, yet I think you are on to something here with your garage nuclear fusion reactor kid.

You're a heck of an inventor. And I think we can take this right through the roof. So who's this guy? He's the kid stays in the picture dude. He's Lionel Hutz. What's the guy? The producer, the legendary producer. Oh, yeah, Robert Evans.

That's who this attorney is. Yeah. OK, we're getting this nailed, man. Like we're really filling it out with great detail. Although Lionel Hutz, or I'm sorry, Robert Evans, may say there is a patent here. Don't waste your time. It's up to you, but it's really similar in these ways.

Or maybe, hey, this thing is super similar, but this actual process within your patent that you're applying for is super unique. So maybe you should just focus on that. Right, and then you can license it to the person who's already got the patent ahead of you. And then that's the point where the kids is, sorry, I want to move forward on this smaller part

or the original patent, and I want to fill out my application like anything else. That's the first step, is you have to fill out that application and send it in. Yes, with some money. With some money. Depending on who. You have to pay that upfront, right?

It's for the application fee, yeah, yeah. And then after, at that moment, once you file your application fee, your patent starts, so that 20-year protection, that doesn't kick in when your patent is granted. Like it kicks in from the date you filed your application. So you can go out and put patent pending on your thermonuclear fusion reactor and start selling it to people.

That's right. In your application, you have to spell it all out for them. You can't just throw your idea in there and say, you guys do the research and see if there's anything else out there. You have to list any kind of potential roadblocks and prior art that may be similar for them to review. You have to briefly summarize your invention.

You have to give a description of what they call the preferred embodiment, which means how are you going to use this thing, basically? Yeah, or what shape is it supposed to take, how are the components fitting together? Right. And then your claims, which are, this is the most important part, and this

is what you're actually going to be arguing about in court if you have to go that route, is your claim. And that is the actual legal description of your invention. Right, and if your claim is very well-written, if you spring for a great lawyer, Robert Evans, this claim is going to be very well-written, very concise, very descriptive, but also sufficiently vague. Sure, because when you do take somebody to court

and you say, this guy has totally ripped me off, here's my patent, here's the description of what my thing does. Now, look at what this guy is doing. It's the exact same thing that my patent lawyer described years ago when I filed my patent application. So the claim is extremely important. I mean, it's basically, it's as important as getting the patent itself.

Yeah, yeah, totally. How much you're going to pay that attorney? All depends, of course, on how many hours they spend, but they put in this article between $5,000 and $20,000. Yeah, I saw more than that. I'm sure it can get up to as much as, you know, I'm sure corporations pay these people a lot of money. Yeah, well, the patent office actually

has a sliding scale of fee schedules. So like if you are a micro entity, I think, which is like just probably one guy, you're an inventor, you're going to pay the least. If you're a corporation, you're going to pay the most. And that's for the patent fees, not the attorney's fees. Right. They don't care about those.

No, but if you're a corporation and you have a lot of like a large patent portfolio and you have an R&D company, you have a patent attorney, a stable patent attorney, so you just are working on that anyway. Yeah, they have their own office in your building. But I saw for a, in a 2005 article, I saw a study had found that for a small size business,

so probably the middle slot of the schedule fee, it would cost about $310,000 to get and maintain patents in 10 industrialized countries. Wow. So I mean, like if you've got a thermonuclear fusion reactor and it works, it's going to totally be worth that. You want to patent it everywhere you can possibly do that, because you're going to make, you're

going to change the world with it. Yeah, and probably as many sub patents as you can create as well. If you are kind of shaky on your idea or you don't think it's going to end up paying off that much, then who knows? Maybe a highfalutin patent attorney isn't the way to go, but maybe you go the route of like a inventors help group.

Like there's actually one called invent help. And some of those things are scams. I looked up invent help. It appears to be totally legitimate. It's got an A minus rating on the better business bureau. What do they do? Have you ever watched like daytime television? They're like, inventors, do you want

to help get your invention to market? Sure. They do every step of the way. Like you submit your invention. I think they help you get it patented. They help you market it. They may set up a website to sell it. Would they take it and sell it or something?

On TV. Yes, they get a piece of the revenue down the line. Or they may also require fees along the way. But some of them are kind of scammy. Apparently, invent help is not. And then another good resource for you, if you are an inventor of limited means, would probably be to go to the Lemelson Foundation that

was established by that inventor Jerome Lemelson, who spent most of his career suing companies that we're using as his patented stuff. I think it's called lemelsonfoundation.org. They have a bunch of programs to help inventors, especially young inventors. It's a good place to start, I would think. All right, we're going to finish up

on how to finish up the patent process and a few more critiques right after this. On the podcast, Hey Dude, the 90s called David Lasher and Christine Taylor, stars of the cult classic show Hey Dude, bring you back to the days of slip dresses and choker necklaces. We're going to use Hey Dude as our jumping off point, but we are going to unpack and dive back

into the decade of the 90s. We lived it, and now we're calling on all of our friends to come back and relive it. It's a podcast packed with interviews, co-stars, friends, and nonstop references to the best decade ever. Do you remember going to Blockbuster? Do you remember Nintendo 64? Do you remember getting Frosted Tips?

Was that a cereal? No, it was hair. Do you remember AOL Instant Messenger and the dial-up sound like poltergeist? So leave a code on your best friend's beeper, because you'll want to be there when the nostalgia starts flowing. Each episode will rival the feeling

of taking out the cartridge from your Game Boy, blowing on it, and popping it back in as we take you back to the 90s. Listen to Hey Dude, the 90s called on the iHeart radio app, Apple Podcasts, or wherever you get your podcasts. Hey, I'm Lance Bass, host of the new iHeart podcast, Frosted Tips with Lance Bass. The hardest thing can be knowing who to turn to when

questions arise or times get tough, or you're at the end of the road. OK, I see what you're doing. Do you ever think to yourself, what advice would Lance Bass and my favorite boy bands give me in this situation? If you do, you've come to the right place, because I'm here to help. This, I promise you.

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And a different hot, sexy teen crush boy bander each week to guide you through life, step by step. Oh, not another one. Kids, relationships, life in general, can get messy. You may be thinking, this is the story of my life. Oh, just stop now. If so, tell everybody, yeah, everybody, about my new podcast, and make sure to listen,

so we'll never, ever have to say, bye, bye, bye. Listen to Frosted Tips with Lance Bass on the iHeart radio app, Apple Podcasts, or wherever you listen to podcasts. All right, so this kid has turned his idea into the patent office. Like we said earlier, it has a pretty good chance of getting rejected on the first pass. And they will tell you exactly why.

And then it's up to you whether or not you want to redo it, or just bail on it altogether, or, like I said, redo it, and resubmit it, and see how your luck runs. Right, and the reasons for rejection can be myriad, like literally 30,000 different reasons. So it can be something from the patent office saying like, we think that this is way too close to another already

patented invention. We don't think it's necessarily an improvement. It's not useful. These are the very high level reasons they can be rejected. If that happens, then you might want to go back to the drawing board. More frequently, I think it's like, we think the wording and your claim is a little too vague.

We don't quite understand the description. Can you make these changes to this paragraph? Your drawing is missing a label. The patent is supposed to be flawless, well-written. If you hire a patent attorney, they're going to hire an artist to do the drawing for that's submitted to the patent office. So it's really supposed to be professional and well done.

And so for any minute technical detail, they can reject it. But then they'll also explain why, and then you can just make the change and refile. If it's something that's just kind of open to interpretation, if you have a patent attorney, your patent attorney can be like, let's negotiate this point. And hopefully get the whole thing passed through eventually. I wonder if you could have to go back to the back of the line,

or if you have a new phone number you can call. I don't know. For like, you know. Man, that's the key, isn't it? You get that secret phone number to the person who actually picks up the first time. And you can be like, please help me. And I think one thing we did mention,

and it gets really dicey if you work for a company and you have an invention as an employee of that company. There have been countless hinky situations. I remember the one they made the movie about, the guy who invented the delayed windshield wiper. Is that a documentary that's out on Netflix? There probably is. But I think what's his face?

Oh, I know you're talking about. That movie, too. The guy from As Good as It Gets. Greg Kinnear. Greg Kinnear. Yeah. I didn't see the movie, though. But I think that was a case of someone

who worked for a company, or maybe he didn't work for a company. Maybe he just presented it to car companies, and he thinks they ripped them off. But if you work for a company, you might get the patent, but the company might still own the product or the process that you invented. Yes.

Because you did it as their employee under their purview. But you might still get a personal patent for it, but maybe you might not benefit like you would as a private person. No. And basically, if you're an inventor, good luck getting a contract with a corporation in the United States where you don't automatically sign over

every bit of your invention to that company. Sure. Or if you create anything creative, you probably have a work for hire contract where all of your work that you write or draw or design or compose automatically belongs to the company. And so the ironic thing is that you are technically the creator of that work or that invention.

But if you go and republish it on your own personal website, you're infringing on this copyright that your company owns, and your company can sue you to get you to stop or to do whatever. And that's a big critique of the patent system, too, is that there's not a lot that the patent and trade office can do about it, but just the way the system works right now, corporations have all of the power

as far as patents go. Yeah, it's such a tough thing. I mean, you hear they're just countless stories from history of so-and-so invented this thing that we all use, but they never made a penny off of it because they did it for IBM. Or like the guys who invented Superman. They were paid like $150 or $300 by DC

and basically told thanks a lot. And over the years, DC made tens and tens and hundreds of millions of dollars off of Superman. These guys were like, this isn't right. And finally, after there was enough outcry, they were granted some back revenue. They got a cape. Do you remember our Christmas extravaganza from last year?

The guy who composed Root Off the Red Nose Reindeer worked for Montgomery Ward and hit on Hard Times. And the president of Montgomery Ward granted him the copyright to Root Off the Red Nose Reindeer, that doesn't happen. Yeah, and that's a copyright, not a patent or an invention. I see both sides a little bit. I always think that corporations are the ones

taking advantage, but if you work for IBM and they have given you the resources and paid you money to do this, then quit your job and go invent something on your own then. Sure, yeah. So I kind of see both sides. But generally, I think corporations probably sticking it to the man.

So speaking of corporations sticking it to the man or humanity in general is of the pharmaceutical industry again. So I said that they're very happy with the status quo. And one of the great criticisms of the patent system now, as it is, is you can get a patent. You can buy a patent and just sit on it. You can buy a patent, say, from a competitor

or from somebody who may be a competitor down the road and prevent them from making it. Even if this thing benefits humanity, even if it literally saves people's lives, you can sit on a patent. And apparently drug companies have been known to do that. There was one famous case with a company called Amgen. And they developed an anemia drug that

treated anemia and iron deficiency. And it worked really well. The problem is the body absorbed it really quick. So you had to take large doses for your whole life. And apparently this researcher, this chemist, found a way to make the drug longer lasting, which in Amgen's mind meant, well, we can't make as much money off of it.

You're selling fewer drugs. So this lady was like, can I just see your patents? And I can figure out a way to latch this onto your drug and save lives. And Amgen was like, nah, we're not going to let you see our materials, our research. So we don't want to make that better. But so that's not as overt as buying a patent sitting on it

to keep people from doing it. But that does happen. Like it's a competitive way to navigate the business climate. Well put, Josh. You worked your way around that one very nicely. Oh, I got something here. If you, it might take like a year to five years to get this patent from pending to approved.

And let's say you put in an idea very similar to someone else around the same time that happens all the time. If that happens, they declare in what they call an interference. A dance off. A dance off, exactly. And they have to actually have a little trial. A little trial. They serve tea.

Everything's in miniature. Everything's small. They have a trial where they basically figure out who got there first. Yeah, there's a very famous case of Alexander Graham Bell and Elijah Gray basically putting in a patent for the telephone at the same time. And I guess for a long time, it was whoever could prove

they invented it first. In the United States was the one who got the patent. And then just to simplify things, in March of 2013, the US changed its patent law. So now the first inventor to file is the one who receives the patent. So even if it's by a minute, whoever got it there first is the one who gets the patent.

That's why filing that patent right away is your best defense, I guess. Like go now. Stop, press pause, and go do it right now. Seriously, if you have an invention. I just got one more thing on the infamous poor man's patent or poor man's copyright. I'm sure everyone's heard, like all you got to do

is write it out and mail it to yourself. I think I've suggested that on this show before. Didn't you remember? I don't remember that. But that is just an old wives tale. That's not going to hold up in court. It's basically worthless. But I don't understand why.

If right when you create the work, it automatically is copyrighted, why would that dating it not make it not just substantiated even more? Well, I'm not talking about writing a book. I'm talking about, hey, I did this invention, and here's the schematic. I'm going to mail it to myself. OK, so it could work for something copyrighted,

but not a patent. Well, no, I mean, if it's just the original work of art you've created like a book, then like I said, it's already copyrighted. So it doesn't even apply. OK, but if you invented something and designed it and just mail this to yourself. It's worthless.

Right, I got you. Basically, you can't prove like envelopes can be steamed open and manipulated. Like that's not going to hold up in court. You can do it if you want. Sure, if you want. You can take it to court and show them. I have an extra stamp that I don't know what to do with.

That's right. Let's see, you got anything else? I got nothing else. If you want to learn more about patents, it's actually surprisingly interesting stuff. Agreed. You can type that word in the search bar at HowStuffWorks.com.

And since I said that, it's time for a listener mail. I'm going to call this Thanks for the Panic Attack episode. Oh, I'm glad they said episode. We got a lot of great feedback. I think this touched a lot of people because they're way more common than you think. Hey, guys, love the episode on panic attacks. I had them in college, brought on by normal college stress,

plus a loss of a blubbed uncle. I would often wake up in the night standing in the hall of my dorm feeling like I could not breathe. Sometimes I would be awake enough to think I'm dying, just need to get the hallway so someone will find me or my body. Sometimes I would just wake up screaming. What helped, and the reason I'm writing,

was some wonderful therapy offered through my university's health services, along with some antidepressants in the support of my family and friends. I learned coping mechanisms to get me through my anxiety, how to express my stress. So I wasn't bottling it all up inside in the importance of taking time to rest, my mind, and body.

With all the help, I was able to leave therapy after a few semesters, was able to recognize that I needed it again later in graduate school after the birth and my second year, my much-loved but very unplanned child. I urge all college students, graduate and undergrad, to really take advantage of their mental health services that are offered to them.

For me as a student, my university each session was only 10 bucks. Man, remember that in college? All that stuff was so cheap. Like the doctor, you could go see a shrink for like $5. I remember I got acupuncture for like three bucks a session. Really, they had that at UGA? No, I did that in LA through a university, though.

You know, my roommate did. There's just some dude. Exactly, he was good with a needle. And it could also be charged to my Bursar account, which I don't even know what that is. Bursar? Yeah, I didn't have one of those. I've been, yeah.

I remember that from college, but I don't remember what it was. I think the word looks familiar. Yeah. The health building was on campus, so sessions fit right into my schedule, and I can't stress enough how beneficial it was for me. Without therapy, I would no doubt have not made it

through college and graduate school. There's no shame in therapy or medication to help you through tough times. Turns out pretty much everyone goes through it to some extent, and no one is weak for getting help. Admitting you need help is what makes you a stronger person in my opinion. And Rosalie Malthy, researcher at University of Oklahoma

Department of Biology, I couldn't agree more. Well, thanks a lot. Is it Rosalie, or Rosalie? Rosalie. Thanks a lot, Rosalie. We appreciate you writing in, spreading that message, because it's a good one. Very pretty name as well.

If you have a patent, we want to hear from you. Tell us what your patent is. So we'll steal it. Oh, no, no, no. We can't. It's patented, man. How about if you've got a great idea that you haven't yet patented, send that to us.

Whatever you want to do, you can tweet to us at S-Y-S-K podcast. You can join us on facebook.com slash stuff you should know. You can send us an email to stuffpodcast.howstuffworks.com and as always, join us at our home on the web, stuffyoushouldknow.com.

For more on this and thousands of other topics, visit howstuffworks.com. On the podcast, hey dude, the 90s called, David Lasher and Christine Taylor, stars of the cult classic show, Hey Dude, bring you back to the days of slip dresses and choker necklaces. We're going to use Hey Dude as our jumping off point,

but we are going to unpack and dive back into the decade of the 90s. We lived it, and now we're calling on all of our friends to come back and relive it. Listen to Hey Dude, the 90s called on the iHeart radio app, Apple Podcasts, or wherever you get your podcasts. Hey, I'm Lance Bass, host of the new iHeart podcast

called Frosted Tips with Lance Bass. Do you ever think to yourself, what advice would Lance Bass and my favorite boy bands give me in this situation? If you do, you've come to the right place because I'm here to help. And a different hot, sexy teen crush boy bander each week to guide you through life. Tell everybody, ya everybody, about my new podcast

and make sure to listen so we'll never, ever have to say. Bye, bye, bye. Listen to Frosted Tips with Lance Bass on the iHeart radio app, Apple Podcasts, or wherever you listen to podcasts.