The following is a reprint of Mr. Cohen's article published in Intellectual Property Today, Vol 7, No. 6, June, 2000, page 5.


For $500,000.00... (by Neal M. Cohen)

Imagine being in the hot seat for $500,000.00 on ABC's "Millionaire", and seeing a patent law question pop up on the screen! That's exactly what happened to Drew Carey on the May 2, 2000 airing of "Celebrity Millionaire". Drew advanced to the ½ million level with a little help from his friends, and he still had one lifeline.

For those of you not working during the 8 pm to 9 pm time slot, you could have tuned in to ABC that night if you wanted to, because Time Warner and Disney were cooperating by then. If you did tune in, you saw the question, which was: "A utility patent gives the owner the sole right to manufacture an invention for how long?
A. 20 years
B. 14 years
C. 50 years
D. forever"

Did your thinking go something like this... D is wrong for sure. C seems like something from Title 17 (Copyrights). B sounds familiar, but it's a red herring, because 14 years applies to design patents, not utility patents. So the answer must be A. That seems right. 20 years from the priority date, at least for post GATT applications. Yeah. 20 years. The others are totally wrong. Final answer.

Well, Drew wasn't so sure, so he burned his 50/50 and narrowed it down to A (20 years) and C (50 years). He went with A (20 years) and won $500,000 for his library charity.

That was great for the game show. In fact, A seems to be the least incorrect answer, if there is such a thing. After all, most (but not all) utility patents that now issue in the U.S. can last for up to 20 years from their priority date. But for ½ million dollars, contestants shouldn't have to pick the "least incorrect" answer. Remember those nasty State Bar questions which required us to pick the "least incorrect" answer? OK, back to Millionaire. Do you know what the real answer is?

The real answer is ZERO. Do you agree? If not, go back and read the question carefully. Now do you agree? A utility patent does not give the owner the sole right to manufacture the invention for any length of time at all. It gives the owner the right to prevent others from (among other things) manufacturing the invention. This is no small distinction. In fact, for any patent lawyer who incorrectly advised their client on this exact question, I would advise them to be sure their malpractice insurance was current.