March 17, 2006 - What's in a Name?
Shakespeare thinks, “Not much.” Trademark owners think, “Everything.”
Patent attorneys, however, don’t seem to care. For decades they’ve called design patents and plant patents by those names, probably because that is what the patent statute and everybody else calls them. But they call sec. 101 patents "utility patents."
Inventions covered by 35 USC §101 are called, in the statute, “patents for inventions.” (See for example §§ 161 and 171.) Patent attorneys have for decades called them “utility patents,” possibly because of the “useful” requirement of §101. Yet plant patents are “useful” in the at least the senses set forth in §163, and design patents are also useful in that same way. So to call a §101 patent for an invention a “utility patent” doesn’t seem to be quite apt. And if we patent attorneys pride ourselves in anything, it is being apt.
What better name might a §101 patent be called. I think, and suggest, that the best way to distinguish a §101 patent from at least the other kinds of US patents is to call it a “technology patent” for clearly it must relate to an invention in one of the four classes of technology set forth in §101. In contrast, a design patent is for something that is ornamental - an ornamental article of manufacture. It relates to ornamentation, not technology. Similarly, a plant patent relates to an asexually reproducible variety of plant. It may incorporate considerable technology, but the plant patent itself only prohibits asexual reproduction of the plant, not use of the technology it incorporates in any other way. If the inventor wants to prevent others from using the plant’s technology, then a §101 patent must be obtained.
For these reasons it seems to me that a §101 patent is aptly described as a “technology patent,’ not a “utility patent.” If you, too, like apt things, you are welcomed to use this designation as often as you wish. If you think of a better name, please post it. (JH)
Patent attorneys, however, don’t seem to care. For decades they’ve called design patents and plant patents by those names, probably because that is what the patent statute and everybody else calls them. But they call sec. 101 patents "utility patents."
Inventions covered by 35 USC §101 are called, in the statute, “patents for inventions.” (See for example §§ 161 and 171.) Patent attorneys have for decades called them “utility patents,” possibly because of the “useful” requirement of §101. Yet plant patents are “useful” in the at least the senses set forth in §163, and design patents are also useful in that same way. So to call a §101 patent for an invention a “utility patent” doesn’t seem to be quite apt. And if we patent attorneys pride ourselves in anything, it is being apt.
What better name might a §101 patent be called. I think, and suggest, that the best way to distinguish a §101 patent from at least the other kinds of US patents is to call it a “technology patent” for clearly it must relate to an invention in one of the four classes of technology set forth in §101. In contrast, a design patent is for something that is ornamental - an ornamental article of manufacture. It relates to ornamentation, not technology. Similarly, a plant patent relates to an asexually reproducible variety of plant. It may incorporate considerable technology, but the plant patent itself only prohibits asexual reproduction of the plant, not use of the technology it incorporates in any other way. If the inventor wants to prevent others from using the plant’s technology, then a §101 patent must be obtained.
For these reasons it seems to me that a §101 patent is aptly described as a “technology patent,’ not a “utility patent.” If you, too, like apt things, you are welcomed to use this designation as often as you wish. If you think of a better name, please post it. (JH)
posted by maui muse at
11:47 AM
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