In general, the answer to this question is “nothing,” though some cases do come up. Let’s look briefly at three examples.
Filed in 1983, the patent claims the art of building a system of computers that communicate with each other over a high-speed connection. A patent, then, describes one technique for making a system. One possible approach was to build a set of “hundreds of interconnected computers” such that each could be designed to send out a message, then wait for a response. The patent claimed a system that, “through a process of communication, one computer creates a set of instructions and the other computer copies those instructions to create yet another set of instructions.”
Here’s the key point: All of us can do that, in principle. And if you can build a system that can copy a set of instructions — a system that works in practice — it has no need for patents, a point that the Electronic Frontier Foundation has put into evidence.
In 1989, a patent, then, described a system, not a machine. But even if the system described by the patent was to function in the world outside of a patent, it could be patented if the underlying ideas were correct. “The system to which patent claims should be directed is not necessary for the purpose for which the claim is directed,” reads the ruling.
Filed in 1989, the patent claims the art of building a system that, in principle, allows a computer to make an internal phone call, then hang up on the other phone. “It should be noted that an internal computer is generally capable of making an internal telephone call and is not required to make the telephone call upon completion of the call,” reads the ruling.
It’s not just a case of simple coincidence. For one thing, Apple and other tech companies like Microsoft and Google have invested heavily in patents in this area. Both companies are big patents owners, though not so far-flung as to qualify as “patent trolls.” In 2010, Microsoft spent nearly $1 billion to acquire Intellectual Ventures, a patent-licensing company that licenses patents for businesses on Apple’s mobile devices, according to a Reuters analysis of tax filings and other data.
So the case of the patent filed for an idea that’s already existed but not patented is about a system that was already patented — but not working as planned. It’s a classic example of a situation which could arise if a patent claim should somehow be applied on the fly in a new
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