Two key points are discussed in this section:
(1) A patent is not the same as a “registered invention.”
(2) A patent is further not a piece of evidence of the invention that is supposedly protected.
Precisely understanding the difference between an invention and a patent is not merely a matter of nomenclature. It relates to the very foundation of the legal protection of intellectual property. A misunderstanding in this respect may lead to a grossly and strategically wrong policy of either a company or an individual for patent protection.
The confusion between an invention and a patent is common. One common misunderstanding is that the patent is essentially a government issued registration or certificate for an invention. The problem is that many who have such a misunderstanding thus loosely equate the patent with the invention described therein. An inventor who receives a patent on his invention tends to automatically equal the patent to the invention. After all, the title says exactly what he has invented; the abstract summarizes what he has invented; and the specification even provides details on what he has invented. But unbeknownst to the patentee, what he got from an ill-prepared patent may seriously mismatch what he has invented.
The above is related to a misunderstanding about the process of going from an invention to a patent. Many mistakenly think that getting a patent is to get an invention “registered” or “certified” by the government. In fact, if you ask someone to briefly describe what he thinks is involved in the process of getting a patent, one likely answer is this: an inventor makes an invention and reports his discovery to the government, which, if also likes the invention, grants a registration or certificate called “patent” to the inventor in return.
This is perhaps the biggest misunderstanding of the nature of a patent and what a patent does. This is also the primary reason why many people persistently believe what a patent attorney does is to beautify the inventor’s “invention report” so that the government likes it better and thus becomes more inclined to grant a certificate (i.e., a patent). These people are probably not very far from feeling that there may be some sort of a “conspiracy” between the government and patent lawyers to warrant that somehow the government and the lawyer can both get paid.
The above misunderstanding is also the root of the tendency for many patent applicants to “bargain hunt” services of patent professionals with little regard to quality, because a natural conclusion of that misunderstanding is that once the invention is “registered” as a patent, it would matter little who prepared the patent and how it was prepared.
But a patent is not a registered or certified invention.
First, a patent is not a certificate of any kind. The inventor may receive a piece of paper that looks like a certificate, but the paper only certifies that the named person is the inventor of the invention disclosed in the patent, but does not certify that the content of the patent, the underlying document, carries the full force of the invention actually made by the inventor. A patent carries a presumption of validity but is always subject to challenge. A patent owner’s confidence in his patent does not go beyond the actual quality of the patent, and the quality is at least partially determined by the professional who prepared the patent. Just because one has received a patent on a certain invention doesn’t mean that he is guaranteed a piece of property. A poorly prepared patent may be found invalid, and in such a case the inventor would have given to the public everything that’s described in the patent but received nothing in return.
Second, even if a patent did “register” or “certify” something, that “something” would still not necessarily be the same as the “invention” the inventor has in his mind. An inadequately prepared patent might be valid but only protect a part of the invention and fail to protect the whole invention.
Another misunderstanding is that a patent is just a piece of evidence of the invention that is supposedly protected, and the actual scope of the protection is objectively determined by the invention itself. The problem with this misunderstanding is that the inventor has in his mind a complete invention, thinking that by the token of the corresponding patent what is protected is the actual substance of the complete invention. This is not true. What is protected is that which is actually defined and claimed in the patent.
In other words, the patent constitutes the very thing that is actually protected, and is not a mere presentation or proof of something else (the invention) that is protected. Ideally, a patent should be a complete and perfect representation of the invention it represents, but in reality, a patent is nearly always an imperfect representation of invention. If any aspect of the invention did not make into the patent claims, that aspect of the invention is lost, regardless of how much evidence you can present later to show that the inventor did make that aspect of the invention. It is as if once the patent is filed, the invention has passed all its life to the patent as far as the patent protection is concerned. All the legal rights that can be derived from the invention can now only emanate from the patent. If the patent is an imperfect representation, or even a misrepresentation, the patentee is stuck with it. There is essentially no way to revive the invention itself to inject new life to the patent.
The difference between an invention and a patent may be partially illustrated by an analogy of a “land of ideas” on which each piece of land represents an idea with its own metes and bounds. Suppose there is a rule that allows someone who has discovered a piece of land (a lot) to own the piece if he can build a fence around the lot. In this analogy, an invention would be a piece of land (a lot), while a patent would be the fence built around the lot. With this analogy, it can be seen that an invention cannot protect itself and does not in itself serve as an instrument of protection of any sort. An invention is only protected by its corresponding patent.
The above being a starting point, we will further discuss why the quality of a patent matters and why who prepares the patent matters.
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