Patent Lawyers Taught To Make Patents As Vague As Possible
from the how-it-works dept
It's no secret that we have serious concerns about the patent system, and how it's abused -- often by patent attorneys -- well beyond what the system was intended to be used for. The system is supposed to put in place incentives for innovation, but it actually puts in place incentives for claiming an invention... and then suing anyone who innovates. Rick Klau points to a writeup by Erik Heels where he complains about how patent lawyers are being trained to write patents these days. Basically, they're told to write patents that are as broad as is humanly possible. He points to a journal piece that tells patent attorneys not to include any section in a patent application that might narrow the claims. That means no background section, no summary section, no discussion of objects and advantages and no discussion of prior art (which we were always told was required...). Any of those might be used to limit the scope of the patent. Amusingly, Heels' complaint with this is that it makes it harder for anyone to infringe on the patent, and he believes patents should be easier to infringe. In some ways, I'd disagree. Without all of that information, the patent can be applied much more broadly. Many patent defenders talk about how the real benefit of the system is that it helps publish ideas that others can use to build new products on (once they've paid their licensing fees, of course). But, it seems pretty clear that patent lawyers are being taught to write patents that don't teach a damn thing. They're writing patents that cover broad, general topics that totally unrelated ideas can be described as infringing -- and which can then be used to set up toll booths to slow down innovation.Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Reader Comments
Subscribe: RSS
View by: Time | Thread
Lawyers and all that
What your real complaint should be is that the patent examiners allow applicants to get by with stuff they shouldn't. It's their (the examiners) job to curb ridiculously broad claims, not the applicant's responsibility.
Moreover, if examiners are allowing applicants to define patents in ways that are so obscure that normal people can't read them, the examiners are dropping the ball, because that's contrary to the quid-pro-quo of why we provide patents.
I'm assuredly not defending the current (pretty horrible) patent process. But let's focus on the problem not the symptoms.
[ link to this | view in thread ]
[ link to this | view in thread ]
Hmm
[ link to this | view in thread ]
patent alternatives?
What concerns me is no longer whining about how broken the patent system is, or mobilising to change it, because I don't think scientists and inventors have much hope of correcting the current mess.
Rather I wonder, what is the alternative to patents. Say someone has a truly original idea and with a bit of research establishes that there is absolutely nothing remotely like it as historical prior art. Let's say that it is a very useful idea, potentially a big life saver. What methods, with a very limited budget, are available to ensure that the idea is published into the public domain in such a way that it can never be patented?
The goal is to make the idea as widely available as possible to the rest of the world for altruistic purposes, not to profit from the deed.
Is there no recognised procedure, other than simply publishing widely and prominently? And in this day and age, does proper publication even guard an idea from proprietry hijack anymore?
In a way I am describing "open source patents", but this is a desire not for a drop in replacement for patents but almost for an "anti-patent", something to immediately protect PUBLIC ownership of a useful idea. Things have got so bad I think that the truly innovative but poor have run out of patience with the system and need an alternative, universally recognised patent-like umbrella under which to publish their work.
[ link to this | view in thread ]
I think tomorrow I will file a patent application for an object with dimensions greater than 35 inches or smaller than 35 inches, and see where I can take it...
[ link to this | view in thread ]
The Examiners do a pretty good job
[ link to this | view in thread ]
Depends on the domain
[ link to this | view in thread ]
Pay up Biatch!!!
[ link to this | view in thread ]
Public liscence
[ link to this | view in thread ]
Intimidation
Legal cases are so rare that for the vast majority of patents they can be ignored. The actual mechanism of control is the perception of intimidatory threat of action by manopoly seeking major economic agents.
Large companies use patents to turn their economic power into a self sustaining monopoly. This may actually be to the advantage of the general population who are likely to have a stake in such businesses directly or indirectly but undoubtedly slows innovation drastically.
The only alternative for such large companies if the patent system was stopped would be to increase the rate of innovation but probably reduce the granularity. Hence faster smaller developments but fewer long term monolithic developments (the cost would not be supported by the now unprotected revenue stream). This would not be a killer problem as most such monolithic development is carried out by governments and universities. Drug companies and capital investment project firms would need to breakup projects into smallerincremental parts.
So elimination of patents would speed up developments dramatically (to make up for the lack of protection) but major step breakthroughs by corporates would disappear and be subsumed into an evolution not a revolution. Remaining major breakthroughs would take place in the public sector or open source communities.
Pays your money ..... takes your choice.
[ link to this | view in thread ]
Simply Not True
Anyone who trains their attorneys to write patents this way is probably committing malpractice.
[ link to this | view in thread ]
Patents descriptions
[ link to this | view in thread ]
Re: patent alternatives?
http://sciencecommons.org/
I'm not sure if it's what you want, but it should be.
[ link to this | view in thread ]
[ link to this | view in thread ]
Protecting a Patent Space
http://www.ipwatchdog.com/2013/03/25/patent-attorney-services-after-first-to-file-what- to-file/id=37406/
[ link to this | view in thread ]