But then comes the “monopoly” argument. Since the inventor has filed a patent on the only two ways to make the idea work, your argument contends, then every other inventor is forestalled from any further innovation in that field. Let’s turn it on it’s head and consider trade secrets as opposed to patent protection. If the inventor would not have filed for a patent on the “two methods that work” and instead kept them as trade secrets, yes, you are correct in that other inventors would not be foreclosed from coming up with the exact same “two methods that work”. But is that really innovation? If ten people come up with the same two methods that work, the marketplace still has only two methods that work… only two choices. Now, let’s say we incentivize the first inventor to publish his findings. Now, other inventors in the field are able to look at those two methods that work and build upon it… make it better… differentiate it… come up with other options that the market can choose from. In exchange for that sharing of information, we’ll give the first inventor a limited monopoly on exactly those “two methods that work”. The inventor has an incentive to publish his invention. The other players in the market are able to improve and differentiate with derivative or different inventions. The consumers now truly have choices. That is true innovation. That is what patents offer in the tech sector.

While patent rights don’t last as long as other IP rights (14-20 years depending) by the time the patent expires in the tech sector, generally the usefulness of the patent has expired.

Tech is driven by ideas and is often constrained by hardware breakthroughs that allow the ideas to work. Ten people can have the same idea but there maybe only two ways to make idea work. Whoever discoveres the two ways to make the idea work first and files for a patent has successfully cornered the market and innovation comes to a dramatic halt.

If patents are to be useful in tech, shorten the lifespan of the patent.

There aren’t many Suarezes in this country. I visited my father’s town in Galicia, Spain, and Suarez is as common there as Smith here.

Incredibly, many companies fail to place any assignment terms in their employment agreements. This is, of course, easy to avoid. Actual assignment agreements must have some degree of specificity. Details about an employee’s later invention cannot be known at the hiring date. Thus, employment agreements typically only create an obligation to later assign patent rights to the company.

Here’s a practice tip for new patent agents or attorneys when filing patent applications for a corporate client: always record an executed assignment agreement (from the employee-inventors to the company) when filing a patent application. PTO rules do not require this. But, if you follow this practice, your clients will avoid many patent ownership disputes with current and former employees.

Many companies also provide incentives for their employees to disclose innovations and cooperate with patent counsel in preparing, filing, and prosecuting patent applications on the company’s behalf. The incentives can include, e.g., special recognition and/or the payment of bonuses or profit sharing in the invention. By rewarding the employee (beyond just keeping his/her job), such practices may also decrease the incidence of ownership disputes.

Just a quick note to suggest that a general conversation about IP should also include trade secret.

Steve