Comic-book geeks love over-thinking the smallest details. In the case of attorneys James Daily and Ryan Davidson, the small details they love over-thinking involve the hypothetical legal ramifications of comic book tropes, characters, and powers — for instance, Batman and Patents:
Like many businesses, presumably Wayne Enterprises would seek to patent its inventions. But Batman’s own use of the inventions in public may prevent Wayne Enterprises from obtaining a patent. In the US, you generally cannot obtain a patent on something that was “in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States.” 35 USC 102(b). This is known as the “on sale bar,” and it is a strict statutory bar to patentability. So if Batman starts using a new Wayne Enterprises technology in a gadget more than a year prior to the patent filing, then he may have ruined the company’s chance at a patent.
Of course, Wayne Enterprises could always file for a patent before the one year grace period is up, but that would mean disclosing the technology to the public 18 months later when the patent application is published by the Patent and Trademark Office. 35 USC 122(b)(1)(A). At most Batman would have 30 months in which to use the technology before supervillains could look it up online and start copying it (presumably supervillains are not concerned with patent infringement suits).
Does vigilante justice involve public use?
It was long ago established that it is enough that a single instance of the invention was used by a single person in public, even if the device itself and its method of operation were not visible (e.g., a hidden piece of armor beneath Batman’s costume). Egbert v. Lippman, 104 U.S. 333, 336 (1881). The purpose of the on sale bar is to induce inventors to disclose their inventions early; if the invention works well enough to use it in public, then it works well enough to be patented.
There is a plausible solution to the problem:
Patent applications that include classified information are not published until either a set time period has expired or the secrecy order has been lifted. 35 USC 181; MPEP 120. But neither do such applications mature into patents; effectively they are held in limbo while they remain classified. So if Bruce Wayne could convince, say, the Department of Defense to classify a given technology, then Wayne Enterprises could apply for a patent early on, Batman could use the technology, and once the time was right the classification could be lifted, the patent could issue, and Wayne Enterprises could make a lot of money. Given that Wayne Enterprises does a lot of work for the US military, this is a plausible solution to the problem.
