Jonas Salk didn't patent his vaccine. What stopped someone else from doing it?

Jonas Salk was an amazing guy. When asked why he didn’t patent his vaccine, he said something like “Should you patent the sun?”.

Something is missing in this story. What would have stopped any Joe Blow from patenting the vaccine and becoming a bazillionaire?

He must have had a patent pending or something. All the famous patent wars through history suggests patents were a free for all. First come, first served.

You can’t get a patent for an item that has already been invented (called “prior art”).

Filing is merely theoretic proof of who invented an item first among those simultaneously developing a product. The patent then give the lucky one who filed first exclusive rights to sell or license the product, without the competition copying it.

If someone invents a product, and does not patent it, then others are free to copy it. However, those copying the product could try to get a patent, but the original inventor or other competitor merely has to submit the original as “prior art” during the patent investigation.

OK… I guess I sort of understand that. Prior art. Had never heard of that.

It becomes prior art when it is published, when a patent is filed, or one year after a product using the invention is offered for sale. Also, you can’t patent something if you didn’t invent it yourself. Until recently in the US, you had to be the first to invent it. Now the priority goes to the first person to file for a patent, but that person still has to have invented it (first inventor to file).

The inventor is the key person. Even if you work for a company, and create the invention as part of your work, it is still you that is the inventor, and you that patents it. Your employer may be assigned the rights to the patent, but they are not the patentee. Indeed the possibility exists that you could refuse to patent the invention, and deny your employer the patent. This would almost certainly be a breach of contract, but is seems the possibility exists.

There are mechanisms by which you can explicitly register your work, so that it becomes prior art for the future. Publishing is the usual way, but as patenting has become such a mess, there are now databases that are explicitly provided for patent searching, and will be searched by both patent attorneys, and patent offices during the patenting process. Registering your work here makes it essentially impossible for a patent to be granted.

Interestingly the one year rule doesn’t apply in Europe. The moment you publish or offer for sale something embodying the idea, ability to patent it lapses. The US, Japan, and here on Oz, you have a year.

There was a pretty good story on patent trolls on This American Life a few weeks ago. The patent at the center of the story was voided by the courts because evidence surfaced that the person who filed the patent was not the person who came up with the idea.

So as others have said, its not just about filing with the patent office, you have to have actually invented the item in question.

My favorite Prior Art:
Man filed for a patent on his brilliant idea to raise sunken ships by pumping them full of ping-pong balls. Was denied a patent because the person making that decision recalled having seen a comic book where Donald Duck did that very thing. :slight_smile:

Thanks for drawing my attention to that story, Simplicio, it’s an excellent piece.

Here’s the links for the transcripts for anyone else that’s interested. The first link is for the original 2011 story, the second for the follow-up piece aired recently.

When Patents Attack Part 1 (PDF file)

When Patents Attack, Part 2

In theory.

As others have said, you can’t patent something that somebody else has already invented and disclosed.

There’s a great book on this by Jane Smith, aptly titled “Patenting the Sun.” She writes that the foundation that sponsored Salk’s research looked into patenting it, but determined it wasn’t eligible for a patent.

Apparently there’s no age limitations on inventors. That inventor applied for his patent at age 5 !
… And there is more originality and creativity in that patent than some I’ve seen. :cool:

Good news is: Steven Olson has no plans to patrol playgrounds seeking royalties from anyone swinging with his methods. This is in contrast to amazon.com which, IIUC, will prosecute any unlicensed website that allows customers to order goods with a single mouse-click. :smack:

The requirements of “novel” and “non-obvious” sometimes get almost reversed in patenting! If an obscure reference to a non-obvious technique can be dug up, an invention is no longer novel. OTOH, some methods really are so obvious that they’ve never been written up – these may be considered “novel.” :smack:

My understanding is that it is also possible for an inventor to get mixed up with their own prior art. In a patent we were filing, there was a concern that we might be in trouble because before filing for a patent we had published our results in an academic journal.

Absolutely not a good thing to do. When I was in Bell Labs, a very important part of the paper clearance process was asking whether there was anything potentially patentable disclosed. Several papers were delayed until after the patent was filed.

IBM used to publish a not widely circulated journal consisting only of disclosures - on things they invented that their attorneys decided were not worth patenting. Disclosing it in this journal prevented the very case the OP was worried about.

Almost as much fun - someone in my group applied for a patent, and it was turned down due to prior art of another patent - done by someone else in my group. Our patent attorney had great fun getting a statement from him that his patent had nothing to do with her invention. The patent got granted.
That was back in the days when examiners even tried.

Well, the patent office is not infallible. I’d image no one bothered to oppose this patent, because if were ever enforced in court by the patent holder, it would be annulled.