Patent Law - Does It Still Exist?

by Dr. Franklin Foster, 2006
[note: this article made possible by support and funding from the Petroleum Society of CIM, Lloydminster Section]

 Innovation is at the heart of the Lloydminster Heavy Oil Patch.  Tools, techniques and processes pioneered locally are in use in all parts of the world.  With such an outstanding record of innovation, one might assume that there are a large number of inventors who have patented their inventions and become wealthy in the process.  Not quite.

 Especially in recent years, the patent process has become complex, expensive, and unpredictable.  If you have mastered some break through that you wish to protect and exploit via the patent process, get ready for a long journey.  You will need the services of a patent lawyer, or at least a patent agent. These folks will first do a patent search to see if your idea is, in fact, a new one, or it has been done before.  The next stage is the patent application.  This can cost thousands of dollars and take from two to eight years to complete.  [examples here]  There must be something new about your invention.  You must detail what it does, including engineering diagrams, and provide detailed, legaleze descriptors about how it works and what it does.  Again, you will need to describe how it is new and different than other related items.

 Assuming you eventually do get a patent, you have exclusive ownership of your invention for 20 years.  You can license others to use it or you can sell your patent rights to others.  There is no worldwide patent, so you will need to attempt to secure patents in every country where you think your invention might be used or manufactured.

 Even if you do all of the above, someone else may start bringing on the market the technology which you have patented.  It is up to you to protect your patent.  This can require extremely costly litigation stretching over years.  It is a game only for those with very deep pockets.  The little guy inventor in his back garage cannot possibly compete with mega multi-nationals.

 For all the reasons mentioned above, patents are often not sought for new innovations.  Attempts are made to license technology or work out co-operative proprietory agreements.  Unfortunately, one of the repercussions is that there is less incentive for skunk-works inventions.  The legal system which underpinned the industrial revolution, and made James Watt and Matthew Bolton wealthy men because of their patents on innovations in improving the steam engine, no longer exists.  Governments and the legal system now act more like a damper on innovation than encouraging it by protecting the process and insuring there are benefits for innovators.  It is sad but true, that innovation in the heavy oil patch (and other places) now mustlook to the past to see its brightest days.