[Be sure to read the update to this post in Law and the Multiverse Retcon #1!]
Batman’s use of gadgets developed by Wayne Enterprises poses an intellectual property strategy problem for the company. Specifically, Batman’s public use of the inventions may actually prevent WE from obtaining patent protection. Luckily, there’s a solution, albeit one that requires a little help from Bruce Wayne’s friends in the Department of Defense.
Batman is well known for his use of gadgets, many of which are based on advanced technology unavailable on the open market. Some times these gadgets are explained as the product of Bruce Wayne’s own considerable intellect. In other cases the gadgets have their origin with Wayne Enterprises R&D, perhaps with some modifications for Batman’s purposes.
Of course, Batman must always be ahead of the curve, so over time his gadgets have advanced to keep pace with technology. The flip side is that over time gadgets and advanced technologies that were once exclusive to Batman fall into common use, perhaps sold by Wayne Enterprises.
And therein lies the problem, at least for gadgets that come out of Wayne Enterprises R&D. 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).
As Bruce Wayne, Batman could also keep the Wayne Enterprises technology to himself: using it in public–and thus destroying patentability–but also ordering Wayne Enterprises R&D to keep the technology on the shelf. In the end Wayne Enterprises still loses, whether because competitors can copy the unpatentable technology or because the company is prevented from selling the technology.
So Batman’s use of Wayne Enterprise technology puts Bruce Wayne between a rock and a hard place: either harm the company that indirectly finances his heroics by using the technology in public or concede a round of the technological arms race by allowing the technology to be disclosed in a patent.
You might be thinking that all this talk of “public use” is a bit silly. After all, Batman isn’t exactly walking around giving public demonstrations of his latest gadgets, much less explaining how they work. The patent laws, however, take a broad view of what constitutes 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 an exception to the public use bar for experimentation, but it is a narrow one, and it may not be practical in this case. In general the exception requires that the experimentation be done by or at the direction of the inventor as part of the development and testing of the invention. City of Elizabeth v. Pavement Co., 97 U.S. 126, 134 (1877). Although Batman often uses gadgets that are not yet fully developed, it is doubtful that Wayne Enterprises would call Batman to the stand to testify that he was using a new gadget at the behest of a Wayne Enterprises scientist in order to test its performance under real world conditions.
Furthermore, the experimental use exception also requires that the testing necessarily be in public, such as in the case of a new pavement material. Id. But most if not all of Batman’s gadgets could be tested in a lab or other testing facility. It’s hard to argue that it’s necessary to test them on actual supervillains and criminals
But now you might be saying: if Batman keeps his use of the gadget secret, and the criminals he catches don’t understand or even notice the new technology, how will this ever be a problem in practice? Who’s going to snitch? I think there are two major possibilities. First, Batman doesn’t always have the luxury of operating in the shadows. Sometimes he works in public, and cameras and bystanders may observe new technology in use. But the second and more serious problem is that Bruce Wayne himself and possibly other Wayne Enterprises employees (e.g., Lucius Fox) know of Batman’s use of the technology. Would Bruce Wayne really be willing to break the law in order for Wayne Enterprises to make more money? Or would he choose for the company to forgo a patent in order to keep crime-fighting technology secret a while longer? I think he would probably choose the latter.
There is hope, however. 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.