Is Freezing and Fusing Patented?

No.  It's my opinion that patenting an artisitic technique is counterproductive.  This world provides plenty for everyone, and I have neither the will nor the desire to sue my fellow artists.  Our art and industry has grown by sharing information, not defending it.

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• Couldn't you patent freezing and fusing?

  Not anymore.  I independently developed the technique in August, 2004, and sent samples to several people.  In November 2004 I disclosed it to over one hundred people in a public setting.  The teachers in attendance at Hot Glass Horizons in Portland will recall that I gave out samples and described how I had made them by freezing and fusing them.   In April 2005 I gave a slide presentation to over 200 people at HGH, in which I disclosed the technique including the method(s) of mixing the frit with water, the method(s) of packing the molds, the method(s) of introducing colorants into the pieces, and the kiln cycle(s) required for fusing.  In that same month we began selling our first products for freeze and fuse applications.

  Apart from that, an artist named Lynn Miller in North Carolina independently started freezing and fusing about the smae time I did and has documented her work on the WarmGlass bulletin board at that time.

  You only get one year to apply for a patent after publicly disclosing something.  Freezing and fusing has now passed into the public domain and stands as "prior art".  It's too late to patent it.

• You fool!  Don't you want to get rich?

  That depends on what you mean by "rich".

  I decided not to patent this technique, but to disclose it publicly  because I have neither the will nor the desire to chase other artists around and sue them.   This technique makes people happy, expands our craft, sells more glass powder, mold materials and more ART, and does not drag my soul down to the level of defensive argument.  That makes me FEEL rich.

  If you would like to know more about patents, read on.

• Why do patents exist?

  Many people believe that patents are like real estate.  You stake out some territory and defend it, so that the technique or process cannot be used by others.  Actually, the intent of patent protection is more broad-minded than that.

  The purpose of patents is to encourage an inventor to DISCLOSE a process that would otherwise remain a trade secret.  Trade secrets are lost when the inventor dies, benefitting no one but the inventor.  Patents document a technique for the ages, adding to the arts known to humankind and expanding our knowledge.

  A patent allows an inventor to disclose their invention, while guaranteeing some exclusive access to it, so that they might have time to profit by it.  The term of a patent is 20 years, which in the 1800's was a working lifetime.

• What is required to patent something?

  Of course, you can't patent just anything.  To get a patent, you must disclose something that:

  • Is a process, thing, material or technique
  • Makes specific, not general, claims
  • Represents "new art"
  • Is "non-obvious" to a previous practitioner of the art

  A valid patent must pass all of these tests.  Notice that all of these criteria are open to interpretation.
  

• OK, but once you get a patent, that's it.  You own it, right?

  No, not at all.  The real test of a patent is whether it is defensible.  And there's the rub.  Patents are granted every day by overworked examiners, which later fail one or more of the above tests when challenged in court.  Let's say that you patent a process, and later in court it is found that people have been doing it for a thousand years but the examiner didn't know that.  Your patent is voided and everyone, including you, loses the money they spent on going to court.  Even if you win, you might not be able to collect anything.

• So the real test of a patent occurs in court?

  That's right.  And that's the problem with a patent.  It takes effort to file it, effort to defend it, effort to challenge it, and in many cases that is wasted effort that could be spent doing something more worthwhile. Inevitably, this means that a certain amount of patent negotiation involves blustering intended to make sure that a patent is never challenged in court.

• Are you against patents?

  Not at all.  Patents provide valuable protection for those who invent something truly novel in an environment where they could really benefit themselves and humankind.  They advance our arts and sciences.

  But you have to pick your targets wisely, I think.  Freezing and fusing is most likely to be a technique used by artists, and licensing and enforcement are tricky things.  Artists are like cats, impossible to herd, and ticked-off if you succeed.  To enforce a patent on freezing and fusing, I would have to be ready to sue any and all of the thousands of artists who will use this technique to make things.  Do I really want to live like that?

  And how much money would I make, anyway?  Most artists are not rich, more's the pity!  I would rather have fun with my fellow artists.  In general, I believe that artistic techniques should be shared freely.
  

• Won't people rip off your ideas?

  Not unless they can listen to my thoughts! Seriously, though, there is a role for other forms of creative protection such as trademarks, copyrights and design patents.  Using a technique does not mean knocking off another person's designs or creative vision.