Fields & Fences: A Metaphor for Understanding Patents
One day, you are walking outside and come across a field. It is wide open and beautiful with rolling hills, trees, and ponds (and maybe even oil and diamonds). You look around, and there is no one in sight. For some reason, either no one has ever discovered this place before, or if they had, they never claimed it for themselves. So, like any entrepreneur, you want to claim it as your own. You ask yourself…
How do I protect this?
At this point, it is just an empty field. There is nothing to identify exactly what you are claiming or how much of it is yours. Worse yet, there is nothing to keep that pesky guy on the other side of the hill from claiming ownership. The fix?
You bring a fence-building friend out to the property, and he is impressed. He agrees to build a fence for your property on two conditions. First, you have to show him and the rest of the world your discovery to prove that it is new and that no one else has claimed it before. Second, you can only keep the property fenced and others off it for a limited amount of time. Afterwards, you have to let others enjoy and use the field too.
You think the tradeoff is fair and agree to his conditions. Your friend builds a fence that defines exactly what is and is not yours. Once the fence is built, your friend leaves and you are left alone to enjoy your new property. You are an expert marketer and salesman, and you make a small fortune by charging others to come and enjoy your land.
Addressing the intruders…
Unfortunately, the guy next door and his friends are persistent. They start trespassing on your property without paying or permission, even though you have it fenced! So, what do you do now? Your fence-building friend is gone and can’t help. And, besides, he is in the fence building business and not the trespasser removal business. It’s your property, which means that it is all up to you to (1) find the trespassers and (2) kick them out. So, you do just that, and once they’re gone, you go on making money and enjoying life in peace.
After some time, your fence-building friend reminds you that you have to maintain the fence or it will come down. If you want to maintain the fence, you have to go to your friend and ask for him to do what is necessary to keep it in good shape (for a fee, of course). Otherwise, if you have lost interest in the fence, if you’re tired of extracting trespassing neighbors, or if your limited amount of time is up, no maintenance is needed and your friend will take the fence down so that others can freely enjoy the field (as was promised). Then, you are off to discover the next field…
Is it time for you to build a fence?
Like the field, inventions can be discovered by more than one inventor. However, only the first inventor to claim (or fence in) the invention in a patent application gets to own the rights to it. In the U.S., those fences (patents) are granted by our fence-building friend, the U.S. Patent Office (USPTO).
Patents are awarded only for new discoveries by inventors. They give the inventor the exclusive right to exploit those discoveries for a limited amount of time. Like the fence, a patent defines the scope of an invention, including what it does and does not cover. A patent gives an inventor the right to keep trespassers out of their property (i.e., exploiting the invention) for a period of 20 years from the date the earliest related patent application was filed.
However, like the fence-building friend, the USPTO grants patents but does not enforce them. Discovering infringement and taking action against infringers is up to the owner of the patent. Lastly, to remain active for the full 20-year life, an issued patent must be maintained through the payment of three ‘maintenance fees.’ If these fees are not paid, the patent will expire, and the claimed subject matter will enter the ‘public domain,’ which means it will be available to the public.
This article is from The Innovator’s Toolkit, a collection of educational articles, documents, and other resources that we have put together that provide easy-to-understand explanations of intellectual property law concepts, provide answers to common IP questions, and help the busy innovator protect what matters most to them (at least in our opinion) – their intellectual property.