It seems like anything non-obvious can be patented, and even private use of patented processes is illegal. Can you do anything with assurance that you aren't infringing a patent? You could read through all current patents, but (a) that would take way to long and (b) what if there's a patent for a method of searching patents to endure an activity is not infringing, which describes the search method you were using?

Could someone walk up to me while I'm typing this and sue me for infringing their patent on a method for accelerated typing on a smartphone? (No they couldn't, because I'm at home and they would be trespassing, but assume I'm in a public place.)

3 Answers 3


Negligent patent infringement is — obviously — not a criminal matter, and will only become one of civil nature if a proper patent infringement notice, pursuant to 35 U.S. Code § 287(b)(2), et seq., is duly served on the infringer, and the infringement continues thereafter. (Although even in the absence of it is not legal, but no action is enforceable without)

Therefore, as a practical matter, they couldn't — unless one continues with infringing conduct duly served proper notice on unless the infringement is done knowingly and willfully.

Additionally, "non-obvious" is a term of art; its case-law description gives broad discretion to patent examiners, supervisory patent examiners, the PTAB as well as the Federal Circuit and the U.S. Supreme Court — as the case stands — to decide what is "obvious" and what isn't. For example, there is no case law defined upper limit of how many piece of prior art may be considered together when arguing they, combined, would make a system, method or computer program product obvious. The limitations on this generally require, for e.g, that the combination have an objective; in the absence thereof, an applicant may argue that it would not have been obvious.

Lastly, it is not everywhere where there is no exception for private use; the U.S. has no such exception though.

  • Obviously? Why is it obvious?
    – phoog
    Sep 22, 2022 at 7:37
  • Negligence is rarely the subject of criminal scrutiny, and no reasonable person would think it is expectable of them (even one of extraordinary skill in one or more different fields of art) that they be aware of the rest of state of the art and what of that is and until when protected by patents. These each alone would give rise to no reasonable finding otherwise, and they stand in each others’ quantum.
    – kisspuska
    Sep 22, 2022 at 8:22
  • "Negligence is rarely the subject of criminal scrutiny": on the contrary, many crimes encompass negligent acts. Try searching your criminal code of choice for the word.
    – phoog
    Sep 22, 2022 at 8:34
  • I meant relative to reckless, let alone willful, intentional deliberate or purposeful acts where mens rea is always present. Negligent criminal acts are typically of more serious harms. The same touch of another, based on mental state, may be assault or nothing for purposes of criminal law. Selling a car and saying the motor is great based on use from years ago, and negligently overlooking the fact mechanical amortization may changed that makes it no crime, but knowing and omitting or falsely stating the condition known will be fraud, potentially of criminal form. Much less negligent crimes
    – kisspuska
    Sep 22, 2022 at 9:33
  • I really thought you were going to answer by saying that it's obviously not a criminal matter because no patent infringement is a criminal matter in the US. US law does not impose criminal penalties for the infringement of a patent.
    – phoog
    Sep 22, 2022 at 12:20

It seems like anything non-obvious can be patented, and even private use of patented processes is illegal. Can you do anything with assurance that you aren't infringing a patent?

Only buy other people's inventions and refrain from inventing your own, unless you are recreating something you know to be in the public domain (which is pretty much any publicly known idea from 2001 or earlier).

It can be a little harder if you run a business that uses any sort of innovative business process, but ordinary activities of daily life, or ways of operating a business that you know to have been in existence for a long time, are risk free.

Realistically, not many people invent things or create innovative processes in their daily lives. This is behavior that very few people engage in at all.

Also, keep in mind that patent laws are not self-executing.

In principle, the patent owner has the exclusive right to prevent or stop others from commercially exploiting the patented invention. In other words, patent protection means that the invention cannot be commercially made, used, distributed, imported or sold by others without the patent owner's consent.

The patent owner can order you to cease and desist from using the patent, and can (with the more limited kinds of remedies available for unintentional infringement) sue you for damages for a time period equal to the statute of limitations prior to when the lawsuit against you for patent infringement began (which is six years in the U.S. pursuant to 35 U.S.C. §286). Damages are usually a function of either lost profit or the fair market value of royalties that could have been earned.

But, in the case of small scale unintentional infringement for personal use of some invention or innovative process protected by patent, the patent owner will often not discover the infringement and sue, and the patent owner will often not find it to be economic to sue (patent infringement lawsuits are expensive) even if your use is discovered (especially if you comply with a cease and desist request once you learn that you are infringing). A patent infringement lawsuit is literally a federal case, and if you've unknowingly infringed by creating five infringing widgets that the patent owners sells for $10 each for your garden that you grew flowers in for your personal aesthetic enjoyment, the damages wouldn't justify the cost and trouble of bringing a lawsuit.

  • Quite possible would result in a federal circuit case law on trifle in the context of patent infringement litigation, too.
    – kisspuska
    Sep 22, 2022 at 0:45
  • "but ordinary activities of daily life, or ways of operating a business that you know to have been in existence for a long time, are risk free" - like these? Sep 22, 2022 at 8:39

To get a patent, something doesn't just have to be non-obvious to you and me, it has to be non-obvious to someone who is an expert in that area. Your method of typing faster may be non-obvious to me and you, but you can bet there is a fast typist to whom it is absolutely obvious.

And reading one patent after the other is very, very obvious. But plenty of things that work a lot better are also obvious, like using keyword search provided by the patent office. At least your part (entering keywords) is obvious; the hard part (finding patents matching the keywords) may be patented and in that case someone will be paying a license fee.

But even then, there is "prior art". I bet I can find keyword search described in a book from the 1960's. And that's prior art, so you can't patent it anymore.

  • Comments are not for extended discussion; this conversation has been moved to chat.
    – feetwet
    Sep 22, 2022 at 22:22

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