What rights do I have to improve upon patented inventions?

Question

Intel, NVIDIA, and AMD have tons of patents. I want to do research in the GPU and computer architecture fields, and publish my findings in reputed journals.

Am I legally allowed to use their inventions as a base for my own inventions? I will obviously give appropriate citations.

I basically want to know what the boundaries of fair-use of a patent are. That is, I have enabling knowledge of a new invention (the patent): what things am I allowed to do with it?

I know that I can do anything with the patents after 40 years, but what can I do with them now?

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Intel's policy

Answer 1

There is no fair use doctrine for patents: Is there a fair use for patents? Should a patent be licensed at a reasonable rate based on use?

Many patents encompass and add on to the claims of a previous patent. These are colloquially known as "improvement patents."

In some jurisdictions, these are expressly recognized in statute. For example, see section 32 of Canada's Patent Act:

Any person who has invented any improvement on any patented invention may obtain a patent for the improvement, but he does not thereby obtain the right of making, vending or using the original invention, nor does the patent for the original invention confer the right of making, vending or using the patented improvement.

Note though, that holding the patent to the improvement does not confer the right to do anything that infringes the base patent. If practicing the improvement patent would require practicing the base patent, for anyone to practice the improvement patent (even the holder of the improvement patent), they would also have to obtain a licence to the original base patent.¹ See "Improvements are Patentable", Lexology (2021):

For example, if an inventor has a patent on a four-legged chair, a third party that has a patent on chairs could still prevent that inventor from selling its four-legged chairs. However, the inventor could also prevent the third party from selling four-legged chairs thanks to its patent.

None of this has anything to do with anyone's subsequent ability to publish, or with copyright.

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^{1. Of course, if practising the improvement patent only requires incorporation of an artefact resulting from the base patent, it would be sufficient just to legally obtain such an artefact.}

Answer 2

IANAL

If I understand correctly, you have two very different things in your question:

I want to do research in the GPU and computer architecture fields, and publish my findings in reputed journals.

Research using patents as a source document should, in and of itself, be fine. Including patents, properly cited, in a research paper should not be a problem, as you are not revealing secret information (anybody can access the patent records) and you are not creating a product based on the patent.

Am I legally allowed to use their inventions as a base for my own inventions? I will obviously give appropriate citations.

Only if licensed. Some companies actually license some or all of their patents for free, similar to (but not exactly the same) open source software. But the general idea of a patent is to use it either produce product without direct competition or to make money by licensing the patent to other companies.

Patents have a limited lifespan, 20 years in most countries, though it can vary by country and by type of patent. This is quite different from copyrights, which is now up to lifetime of the author + 70 years in the US. But consider that many patented items will be obsolete in well under 20 years, but great literature is timeless.

Sometimes the different protections collide. For example, while any functional patents of 20+ year-old CPUs and GPUs do not matter any more, the specific layout of a chip may be copyrighted. Meaning you could build your own 20+ year-old XYZ chip from scratch to match the exact functionality of a genuine XYZ, but you can't peel off the top of the chip and copy it to make a clone XYZ. (That is not so practical with modern chips, but was possible decades ago.)

Answer 3

Am I legally allowed to use their inventions as a base for my own inventions?

In the US, you can patent a non-obvious improvement or addition to an existing patent. In other words, you can claim all the features claimed in an existing patent claim, and add one or more features. However, this does not mean that you could sell the product in accordance with your invention. If the broader preexisting patent is unexpired, you would still need a license from the assignee; and they would need a license from you to practice your improvement.

I know that I can do anything with the patents after 40 years, but what can I do with them now?

In the US, you don't have to wait 40 years. For utility patent applications filed on or after 08 June 1995, the term is generally 20 years from the filing date, although some term extensions are possible, for example if the USPTO examined the patent too slowly. Also, because maintenance fees are due at 3.5, 7.5 and 11.5 year intervals (plus an extra 6 months if you pay a surcharge) from the issue date, a patent can expire much sooner than the 20 years.

Also, certain US patents are not enforceable against "medical practitioners" and "related health care entities" due to 35 USC §287(c).

Answer 4

The technical content of a patent is public information.

You intend to publish your improvements which does not constitute patent infringement. For an infringing action, you would have to do more than that.

Third parties might be inspired to unknowingly infringe on the original patent by monetizing your ideas (the improved invention). That is generally not your responsibility; if you provide appropriate references to any applicable patent protection known to you, that's the ethical thing to do, but not a requirement of patent law.

If you, on the other hand, decide to monetize your own improvement, or anything else that embodies the original patented idea (improved or not), you are infringing regardless of how carefully you handle citations, unless you procured a specific license from the patent holder.

The exact line between just "advertising" (the potential commercial value of) somebody else's invention and indirect infringement (e.g., by licensing an implementation of a software component that can easily be used in infringing ways and cannot be used in any non-infringing ways, and/or by inducing actual 3rd party use thereof somehow) can be jurisdiction dependent. Indirect infringement generally requires intent that an actual infringement by a third party would eventually happen, and a bona fide academic publication has demonstrably entirely different (publisher's and author's) goals. If you think that a patent holder could hate your publication enough to sue you for indirect infringement, ask yourself what would make them see it as a blatant infringement tool rather than a welcome advertisement of their undisputed ownership and see whether you can make your academic intents even clearer in how you report on your research results.

(When citing patents, remember that their existence and content proves that somebody owns a certain idea, but not that all the technical details, or even the entire idea behind the patent, is scientifically sound. This means that patents tend to be referenced for different purposes than prior research would be.)

Answer 5

Yes -- it is allowable to use other patents in your patents. Note though that a patent is not a license for you to make your idea, it is a way of preventing others from making and selling your intellectual property. From https://www.uspto.gov/patents/basics/essentials#questions, "A U.S. patent gives you, the inventor, the right to 'exclude others from making, using, offering for sale, or selling' ...."

This means that if your patent uses another patented device, you are not allowed to make and sell your device unless you arrange some sort of license to use the patent your device relies upon.