More from Patenting for Inventors
This episode of The Patenting for Inventors takes on patent evergreening, the controversial practice of obtaining new patents on later improvements to an existing product so that patent protection can extend beyond the life of the original patent. I explain why evergreening is not itself a legal term or automatically improper, using examples such as new drug formulations, delivery systems, manufacturing methods, and other genuine improvements that may independently qualify for patent protection. The episode also looks at the criticism of evergreening, particularly in the pharmaceutical industry, where additional patents can delay generic competition, and explains the important distinction between legitimately patenting a new invention and using marginal changes primarily to prolong exclusivity. The key takeaway is that a product can be protected by many different patents over time, but each later patent still has to satisfy the ordinary requirements of patentability on its own merits.
In this episode of The Patenting for Inventors Podcast, I explain prosecution laches, a rarely used but important doctrine that can create problems when a patent applicant keeps an application pending for an extraordinarily long time. I discuss when lengthy prosecution can become unreasonable or unfair, particularly when competitors have invested in products or industries while no enforceable patent existed, and why simply filing continuations or having a long prosecution history does not automatically create a problem. I also cover the historical "submarine patent" issue, the significance of very lengthy delays, and the recent Gilbert Hyatt litigation, including the Supreme Court's 2026 decision not to hear the case. Finally, I explain how inventors can legitimately use continuations while avoiding a prosecution history that looks like an attempt to wait for an industry to develop and then shape patent claims around successful competitors.
In this episode I answer an unusual but very real intellectual-property question: Can you patent a smell? I explain why a scent itself generally cannot be patented, but the chemical composition that creates it, the process used to manufacture it, or a device that releases it may be patentable. I also discuss when keeping a fragrance formula as a trade secret may make more sense than disclosing it in a patent, and how, in rare cases, a distinctive scent can even function as a trademark. The episode explores how patents, trade secrets, and trademarks can work together to protect different aspects of a scent-based product, and why inventors should think carefully before disclosing their formulas or inventions to the public.
Lost in Translation: How Bad Patent Translations Can Kill Your Global Rights. Patent translation isn't simply about converting words from one language to another, it's about preserving the legal and technical meaning of your patent. I explain how seemingly small translation mistakes can accidentally narrow claims, turn optional features into required ones, create inconsistencies in technical terminology, or cause problems when making amendments later. I also discuss translation deadlines, PCT national-phase filings, and why inventors seeking international protection should use translators who understand both the technology and patent language.
In this episode I explain why a patent examiner and a judge may interpret the exact same patent claim differently. I break down the Patent Office's Broadest Reasonable Interpretation standard, how courts analyze claims after a patent issues, and why the wording of your claims, specification, and prosecution history can dramatically affect what your patent ultimately covers. I also explain what inventors can do during prosecution when an examiner reads a claim more broadly than expected, and why careful drafting from the beginning can make a major difference later.