Make your medical product ideas come to life: Public Domain

In the last column we talked about how to comb through patent claims and perform a lay assessment of infringement. While you might arrive at the conclusion that your innovation would not, in your estimation, infringe any of the claims you turned up, there is something else you need to know about patents: Do any of them contain examples or details in the patent’s brief or detailed description that explain your innovation—yet are not mentioned in that patent’s claims?

If you find your idea described in a patent, but not claimed in any patent, you may have a patentability issue. In other words, if this description is not covered by that patent’s claims (or by the claims in any patent), then the described idea is most likely “public domain.” If an idea is in the public domain, it means that it cannot be patented by anyone. Instead, anybody may freely make, sell and use it. If you were seeking the advantages afforded by patent protection for your innovation, an issue of public domain would not be good news.

Normally, we would expect something covered by the claims to also appear in the patent’s brief or detailed description. It usually is, but not always. This example of public domain is similar to discovering that your innovation has been described (more than a year ago) in a journal article or other publication. If that occurs, and no patent claims have been filed on it, the idea is public domain and may be used freely by anybody. If you come across such a description published less than a year ago, confer with your patent attorney on its impact.

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