Legal aspects of Webdesign: Patents

Until about five years ago, patents have not gotten much attention on the Internet. However, now that more and more people realize the importance and the power of patents, this situation is changing tremendously. It is certainly possible that some algorithm or technique on your Website is patented. As infringing on someone's patent can be very costly, it is important to be careful.

What are patents

A patent is the exclusive right to make, use or sell an invention in a country. This invention can be a product or a method of making a product, although since recently also methods of doing business and computer programs can be patentend. In order to get this right, the inventor must apply for a patent at his patent office. He must fully disclose how the invention works and how it can be constructed and applied. This allows (at least in theory) others to make use of the invention. In return for his disclosure, the inventor gets the exclusive rights for a limited time (typically 20 years after applying for the patent).

The below information only briefly touches upon the most important aspects of patents, to give you an idea of what the concepts involved are and how patents work. A more detailed explanation is available in the Crash course on patents.

What can be patented

There are two important criteria that determine whether an invention can be patented:

  1. The invention must be novel. This means that no one else had described the invention at the time the patent was applied for.
  2. The invention must be non-obvious. This means that, given the general knowledge at the time the patent was applied for, it would not be easy for the average skilled person to come up with the invention.

How patents are obtained

When an inventor applies for a patent, the patent office searches the available literature to determine whether the invention is novel, and based on the most relevant publications they find, they determine whether it would be obvious to invent what is in the patent. If the invention is found to be both novel and non-obvious, the inventor gets the patent.

It is important to note that the tests for novelty and obviousness are done on the basis of the knowledge people had at the moment the patent was filed. As it may take several years for a patent application to be granted, the idea behind the invention may already have been published by someone else, but if that publication was done after the day the patent was filed, it does not count in determining the novelty. The term of art for this is that that publication does not count as prior art.

When you invent something, but never publish or produce the idea, others can still file for a patent, and you may then be infringing when you later decide to produce the invention. In some countries, most notably the USA, there is the notion of the "true inventor", who first invented something. Others cannot patent the invention, if the "true inventor" can prove he invented it first. Other countries, such as most European countries, have a simple policy: whoever applies first, gets the patent.

The scope of a patent

It is possible to get a patent in more than one country. An inventor can apply for the patent in several countries at a time, or apply in one first, and within a year apply in others as well. There are several treaties that make this process easier. For example, as there is no "European patent" which is automatically valid in all European countries, an inventor would have to apply for a patent in all countries separately. To avoid this, he can apply at the central European Patent Office and process the application one time; if this is done successfully, the patent application can then be transformed into national patents without extra effort.

Patents are very expensive, as the idea is to make the whole process self-sufficient. It is only interesting to apply for a patent when the inventor expects to make a lot of money from his invention, either by selling the invention in a monopoly position, or by licensing other people to do so. Licensing can be a very lucrative business if your invention is very useful.

Patents on the World-Wide Web

To determine whether something is novel, all published literature is (at least in theory) taken into account. But in fields such as computer science, few literature exists. This makes it a lot harder to determine whether a particular invention is truly novel.

Because of this, several patents have been granted for things that many computer scientists argue was already known before the patent was filed. However, without a publication showing the invention in the patent, dated before the application date, it is not possible to get the patent invalidated.

Infringing on someone else's patent

When does infringement take place

An inventor can get a patent for a product, such as a machine, which he invented, but also for a specific method of doing something. When a product is patented, no one else may make, use or sell that product. Typically the patent does not describe a product in great detail, but only lists the essential features. This makes it impossible to "work around" the patent by removing some non-essential elements from the invention.

This definition of what exactly constitutes the invention is given in the claims. You can only infringe on a patent when your product matches one or more of the claims. So, if a claim were to say that the invention has four wheels, and it would be possible to build and use the invention with only two wheels, then that two-wheeled variant does not infringe on the patent. For this reason, claims are written in very broad language to cover as many variations as possible.

This is discussed in more detail in the article Determining the scope of a patent.

When the patent describes a method, no one else may use that method. In addition, everything produced directly by that method is also covered by the patent. For example, Unisys holds a patent to the GIF algorithm for making images. In the last few years, they have started to enforce their patent by demanding that people buy licenses or stop creating GIF images. As the patent covers the method of making such images, the images produced by that method are also covered by the patent. So, if you create a GIF image with a program that does not have a license, you may not use that GIF image.

Who can infringe on a patent

In the USA, everyone, including private persons, can infringe on a patent if they make, use or sell the patented invention. However, in general it is too expensive to track down and prosecure individuals who do this. In most European countries, private persons cannot infringe on a patent, as the patent laws there only reserve the patent rights for "use in commerce".

A person or business can only infringe on a patent if the patent is valid in the country where they make or use the invention. So, a German company is free to produce an invention which is patented in the USA. If the inventor in the USA wanted protection in Germany, he would have had to apply for a patent there as well. He can only do this within a year of his original application in the USA.

The World-Wide Web makes this situation a lot less clear. If the US patent covered a method, and the German company built a Website which executes that method for everyone, then any US citizen using that Website is violating the patent. The German company may then be seen as assisting in this infringement, but it would be difficult to bring them to a US court.

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