When a Patent isn’t a Patent – Apple’s iWatch

One of my pet peeves when reading technology news is the lack of understanding of the patent system.  Macworld is just the latest cuplrit with their article titled “Apple wins patent for curved battery, could be used for iWatch.”  Macworld fails to do their research to tell you that this is nothing more than a published application.  No patent has been awarded.  Okay, now that’s out of the way, let’s talk about the patent system so you are better equipped to wade through the FUD in tech rumor news.

The Patent Process – Filing

The first step in the patent process is filing your patent application.  With the recent developments in the law, getting your idea on file is even more important.  You need to explain it enough detail that someone in your field could replicate what you did.  And you need to define what is the piece of intellectual property land is that you claim.  These are called claims.  Here’s a little added bonus – if you have only one idea, don’t worry, you can have more than one patent application.  The more patent applications you file, the better your fence around your land can be.

The Patent Process – Publication

Once filed, your application will be published 18 months after that.  You can keep it secret if you want, but where is the fun in keeping secrets, right?  Let’s look at this alleged ‘won patent’ as an example of publication.  This application was just published on May 30, 2013, though it was filed a mere 4 months before that on January 22.  “Wait, you said you have 18 months,” you quickly conclude.  That is true, but remember that you can file more than one application on an idea.  The publication is triggered off the first filing.  This ‘won patent’ is just the latest filing from an application filed on October 28, 2011 (Ser. No. 13/283,750 if you care).  There may actually be more of them out there.  I can’t find that earlier filing, which means that Apple kept them secret, paying alittle extra money.

A published application has no force of law.  Just because you file an application, and get it published, doesn’t mean that you will ever get anything.  The claims, which define that fence, are as broad as the patent attorney could contemplate, but nothing has been examined.  The Patent Office examiner hasn’t looked at the relevant art and done anything.  Just like I don’t get a mile of beach in South Miami just because I said I own it, you don’t get what you filed without some sort of intellectual property title search, which is done by the examiner.

The Patent Process – Examination and Grant 

The examination by the Patent Office is meant to determine whether someone else has had the same idea described in essentially the same manner as yours covering essentially the same innovation as yours.  If there are no other claims (a title search for land deals is a useful analogy) to your intellectual property land you will get your patent granted.  At that point, you have won your patent.  In patent attorney words, your patent has been granted. Now, extending my land example, you get to enforce your rights to that property against anyone who wants to come on it.  Just like you owning the land doesn’t keep people from crossing your front yard, you can call the police and report them for trespassing.  Patent lawsuits operate a lot like that.  They are just the high-cost equivalent of calling the police.

Rumor-mongering with patents

Now that I have gotten my pet peeve off my chest, we can look closer at the iWatch.  This application was first filed back in the fall of October 2011.  About 3 months before that is about when the whole drafting and filing process began.  This might be longer, or it might be shorter depending on what Apple’s IP pipeline looks like.  That doesn’t take into account how long the inventors took to realize they had something important.

Taking all that into account, the idea of a curved battery probably occurred to the inventors in the spring of 2011.  It’s only been two years since then.  I think it is very instructive that Apple has just had this most recent application publish.  Since the Patent Office doesn’t work for Apple, and it should have published in April (18 months from October 2011), I can only conclude that Apple really wanted this to publish.

Using only this patent application as a basis for this conclusion, I conclude that Apple will announce an upcoming iWatch at the WorldWide Developer’s Conference.  I doubt they are ready for any mass shipment yet, though.  So, save your nickels and dimes because you will be wanting one of these under your christmas tree.  You didn’t hear it first here, but you did hear it here.  iWatch will be here next week.

One other note

If you have an innovative idea and you think you can make some money off of it, either by selling it to someone, or exploiting it yourself, you need to find an attorney.  Despite the trend in the rest of the law towards more plain language, this is not an area to trifle with.  The claims are so specific, both in the vocabulary and the grammar, that if you are not trained in the drafting of them, you will leave cards on the table.  There are things that you can do as a non-lawyer, but when you are talking about very tangible and lucrative property rights you need to find someone qualified to do the work.

DISCLAIMER – This is just a very short primer on the patent process and the law.  This is not meant as legal counsel in any manner.  If you have questions about your specific situation, please consult an attorney.

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