On July 31, 1790, the first U.S. patent was issued to Samuel Hopkins for an improvement "in the making of Pot ash and Pearl ash by a new Apparatus and Process" and signed by then President George Washington.
Let’s say you’ve founded a startup and think you have a completely original idea no one has thought of before with new approaches to the way an old process works. You might then think all you have to do is patent that process and you can achieve the protection patenting is all about: excluding others from copying you.
Oh, if it were only so simple. The world of patents has become incredibly complex and is a minefield just waiting for a startup to get traction selling their offering before the unaware entrepreneur takes a step, hears a click, and thinks “Oh-oh” just before the “patent landmine” blows up. This is especially true in the area of method (i.e., process) patents but there’s hope.
Ernest Grumbles III
Ernest Grumbles III, an intellectual property attorney with Merchant & Gould and co-founder of MOJO MN, has one of the best posts I’ve read yet at StarTribune on the current state of method patents (and it’s obvious why you need somebody like him to ensure your idea is capable of being patented or even worthy of protection). As Ernest points out, method patents are neither good nor bad and are granted based on the merits of the claim and its level of abstraction. If you have a method idea you’re already moving forward on (or are about to) then you owe it to yourself, and your current and future investors, to make certain you are protected and that you wrap that idea in a way that minimizes abstraction and ensures you’re granted that patent!
That said, calls for patent reform are growing louder by the week and many of us who see some patents as ways to extort money from entrepreneurs and innovators or stifle innovation, hope the U.S. Patent & Trademark Office moves faster on reform.
Until there are significantly more precedents set in the area of method patents, people like Ernest will have no shortage of work and startups no end of concern over whether a method idea is too abstract to be patented or likely infringing on some obscure patent already granted.