Where in the Patent Process Does an Idea Exist? Or Does It?
Can something be simultaneously alive and dead? This is the question posed in the famous thought experiment conducted by Austrian physicist Erwin Schrödinger in 1935.  Paraphrasing to eliminate a few scientific and gory details, he surmised that placing a live cat in a box would eventually lead to the question of when it stops being alive if you have no way of monitoring the cat or opening the box.
This same debate might also be applied to the many inventors, attorneys and companies involved in deciding when a novel idea is really (substitute “effectively” if you wish) confirmed as being novel.
Why should I care? I’ve noticed that many people consider their idea to be “patented” as soon as their “provisional patent” (their terms) has been filed. A number of people are planning on getting a “world-wide patent” (again, their terms) something which does not exist.
The quandary is that patent protection of unique ideas has several “states.” Ah, yes, now we’re back to the paradox posed by Schrödinger.
A few examples:
Provisional Patent Applications are filed at the U.S. Patent and Trademark Office (USPTO) to protect an idea with minimal effort and expense. The paradox is that these documents are not published and they are not reviewed by the USPTO. In this state, only the inventor and anyone who helped draft the application know the contents. The USPTO knows that the inventor filed the application but nothing more.
So, does the idea really exist outside the inventor’s mind? Of course, the quandary is broken anytime the inventor discloses the details of his or her application with another person.
A Non-provisional Patent Application is known to exist by the public after the USPTO publishes it, commonly 18 months after the filing date. The USPTO doesn’t know the contents until the first office action, commonly one to three years later.
Schrödenger might propose that the contents of the application are unknown until publicized or until the first office action. Another quandary is whether the application will ever turn into a granted patent with accompanying legal benefits. In this pre-grant state we don’t know whether the application will be abandoned, patent granted, or whether only a portion of the claims will be granted.
Granted Patents are, at least in theory, known by the public as soon as the document is published.
But Schrödenger might ask questions such as:
- Does the patent really exist if it’s not easily discoverable in a patent search (some patents are not)
- Does it exist if it’s not being commercialized or monetized (the desired outcome for most inventors)?
- Does it really exist if the owner isn’t monitoring for infringers (assuming that it’s not part of a purely defensive strategy) allowing others to essentially diminish what might have been a novel idea at the time?
Picture credits: Anarkman~commonswiki and Nobel foundation (Wikimedia)
 Schrödinger’s cat (Wikipedia)