An abstract idea and a patent attorney walk into a patent bar. The bartender says, “Sorry, we don’t serve abstract ideas.” The attorney replies, “That’s fine—we’ll just reduce it to practice.” Some of you may already get the punchline. If you don’t, read this short article and learn about “The REAL Ideas of Patent Law.”
The Abstract Idea
Patent attorneys are often approached with questions like: “My cousin has an idea he wants to patent. He says his idea makes a gasoline-powered car travel 500 miles on no more than a pint of gas. Can you help my cousin patent that idea?”
The patent attorney meets the cousin and asks, “How do you envision making a car travel 500 miles on no more than a pint of gas?” The cousin replies, “Oh, I don’t know. I just want to patent the idea so that once someone figures out how to do it, I can collect a royalty.”
“Brilliant!” says the patent attorney – though not for the reasons the cousin thinks.
This is a classic example of an abstract idea. Here’s a simple definition: “An abstract idea is what you want to achieve, not how you technologically achieve it.”
Why is An Abstract Idea Not Patentable?
The genesis of our U.S. patent system is Article I, Section 8, Clause 8 of the U.S. Constitution, which authorizes Congress: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.“
To achieve this noble end – the promotion of the progress of science and the useful arts – an inventor must explain his or her discovery to the world. The mere revelation of making a car go 500 miles on a pint of gas is not such an explanation. It is an abstract idea. The cousin has to describe the mechanism of how he can make a gasoline engine operate a car 500 miles on one pint of gas in order to obtain a patent. The development of the mechanism of how to make a car go 500 miles on a pint of gas is, in patent terminology, the “reduction to practice” of a patentable invention.
The United States Patent Office
The early United States Patent Office very much served as a central technical library. Thomas Jefferson was instrumental in institutionalizing the concept of patents as being a public knowledge repository. Jefferson promoted clear descriptions and working principles rather than vague concepts, and rejected the idea of speculative or overbroad patent coverage. In other words, patents are to be instruction manuals, not merely property deeds.
In the 18th and 19th centuries—before modern journals, databases, or the internet—the patent system was one of the primary organized repositories of applied technical knowledge in the United States. Entire technological lineages (e.g., steam engines, telegraphy, semiconductors, pharmaceuticals) can be traced through the disclosures of patents.
The Patent Law
To guide and incentivize inventors in describing their inventions, certain statutes and rules have been enacted and implemented. The central library function is embodied in a federal statute, 35 U.S.C. § 112, which requires that the inventor describe the invention in such a manner as to enable others skilled in the art to make and use that invention. It also requires the disclosure of the best mode of how to make and use that invention. Once the patent expires, the teaching of that patent must be sufficient to allow the public to practice the invention without further experimentation or invention.
The system’s requirement of clear and detailed explanation and patent coverage based on the patent’s explanation of the invention permits others to design around that patent during its term, thereby promoting further invention. In addition, others can improve upon the invention based on the description in that patent and patent the improvement, which also promotes the progress of science and the useful arts.
Hopefully, the punch line of the opening joke is now clear. If not then just remember this ditty:
Roses are red,
Violets are blue,
Without implementation,
An abstract idea won’t do.
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