Patent Office Exploring Keeping Patents Secret If They're 'Economically Significant'

from the wasn't-disclosure-the-point? dept

Fri, Apr 27th 2012 3:46pm — Mike Masnick

We're told, repeatedly, by some patent system supporters that the whole point of the patent system is really about "disclosure." Of course, this is a myth for a variety of reasons. The biggest, of course, is that in many industries patents are both completely useless to learn anything from and are never used to learn how things are done. This is especially true in software, where you will never hear about anyone learning how to do anything from a patent. A few years back, the US Patent and Trademark Office (USPTO) started publishing nearly all patent applications 18 months after the application came in. This is a pretty common practice around the globe. If a patent system is about disclosure, this makes sense -- and in theory, allows for people to point out prior art or protest certain patents before they're issued. There is a current exception for patents deemed in the interest of national security to keep secret (such as patents on nuclear energy).

However, as Francisco George points us to the news that the USPTO is now considering also keeping "economically significant" patents secret too (pdf and embedded below). They're exploring this after being directed by Congress -- and it's not hard to see the lobbyists' fingerprints on the specific request:

By statute, patent applications are published no earlier than 18 months after the filing date, but it takes an average of about three years for a patent application to be processed. This period of time between publication and patent award provides worldwide access to the information included in those applications. In some circumstances, this information allows competitors to design around U.S. technologies and seize markets before the U.S. inventor is able to raise financing and secure a market.

As far as I can tell, this directive seems to be saying that because patent applications might do what the patent system is supposed to do -- help disclose ideas -- we should keep the applications secret. The problem, of course, is that pretty much every patent applicant is going to think their patent is economically significant. The reality is that pretty much no one knows if their patents are economically meaningful until years later when a product is actually on the market. This proposal seems to serve no purpose other than helping companies not to disclose ideas while still letting them get patents.

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Filed Under: congress, disclosure, secrecy, uspto

59 Comments

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Androgynous Cowherd, 27 Apr 2012 @ 3:52pm

Isn't there another problem with secret patents (whether for "national security" or "economically significant" reasons)?

Namely, how is anyone supposed to avoid accidental infringement if the thing is secret?
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:Lobo Santo (profile), 27 Apr 2012 @ 3:55pm

Re: Unrealistic
How can they arrest you for crimes which you didn't know where crimes if they tell you what's a crime or not?
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varagix, 27 Apr 2012 @ 4:02pm

Re: Re: Unrealistic
Because appearantly ignorance isn't an excuse. Unless you're they one writing laws, then it appearantly excuses everything.
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Anonymous Coward, 27 Apr 2012 @ 4:05pm

In some circumstances, this information allows competitors to design around U.S. technologies and seize markets before the U.S. inventor is able to raise financing and secure a market.

It's amazing how blatant they're being about the true purpose of patents here: The only way for a competitor to be infringing a patent before the patent is published and before the patentee can bring their own product to market is by independently inventing it. Which gives lie to the true intent of these patent holders: They want to patent something obvious, which everyone else will independently come up with and implement, then keep the patent a secret so that it can be used as a submarine patent once everyone is infringing it.

Or to put it another way, anyone who thinks they have a legitimate interest in preventing competitors from designing around their patents is evincing a brazen intent to use the patent system to thwart legitimate competition rather than promote innovation.
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Anonymous Coward, 27 Apr 2012 @ 4:08pm

Re:
Even better, that seems to be what they want to prevent.

They seem to be complaining that other people are using the patent information to implement the idea in a non-infringing manner, which would obviously prevent the patenter from collecting money from licenses like they were planning to.
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Anonymous Coward, 27 Apr 2012 @ 4:09pm

Why 18 months?
Why do they wait 18 months to publish applications? Why not right away?
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6, 27 Apr 2012 @ 4:16pm

If you finish reading the document mike I think you'll find that this is simply in response to the congressional subcommittee being worried that some applicants will lose their competitive advantage due to EARLY 18 mo publication and not get any advantage from an issued patent at that time, allowing foreign companies to jump in and take a market.

In other words, they're worried about the effects of the PTO being slow.

The idea of implementing a "national economic "security"" secrecy order to resolve the situation is at best absurd. But the congress apparently mandated the PTO look into it. The obvious answer is to simply speed up processing of whatever apps they consider to be vital to our "national economic security".

And remember, it's just a request for comments. It isn't even a proposal for a new rule or law implementing such a scheme yet.
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6, 27 Apr 2012 @ 4:17pm

Re: Re:
That's just what Mike's out of context snippet says. Read the paper and you'll understand something quite different than his bs article.
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6, 27 Apr 2012 @ 4:18pm

Re: Why 18 months?
Supposedly that will make many companies not even file because they'd be giving up their secrets WAAAAAAYYYYY before getting a patent.
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Anonymous Coward, 27 Apr 2012 @ 4:19pm

Back to Mercantilism
... seeking comments as to whether the United States should identify and bar from publication and issuance certain patent applications as detrimental to the nation�s economic security

Why is the nation's economic security so equivalent with the economic security of certain favored corporations?
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6, 27 Apr 2012 @ 4:20pm

Re:
If you actually read the paper you'll see they're worried that the foreign competitors will gain a huge market share after having designed around thus ruining the inventor's chance to get in the market because the government told everyone about his invention before he could get a patent and secure funding.
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Chosen Reject (profile), 27 Apr 2012 @ 4:27pm

Re:
I actually agree with the proposal so long as they also include an independent invention defense clause. Don't disclose the patent until after the patents expiration, include an independent invention defense and you've eliminated almost every patent lawsuit. You had to have invented it independently if you couldn't see the patent.
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Anonymous Coward, 27 Apr 2012 @ 4:31pm

Hmmm..
Hmmm...SOPA/PIPA, ACTA, TPP, CISPA, secret patents, cops arresting people for taking pictures of them, where is all of this leading? Maybe here: Gun sales break records before Christmas�
http://articles.nydailynews.com/2012-01-02/news/30582574_1_gun-sales-andrew-arulanandam- gun-dealers
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fb39ca4, 27 Apr 2012 @ 4:55pm

So how do you know if you are infringing on one of these secret patents?
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GMacGuffin (profile), 27 Apr 2012 @ 4:57pm

Re:
This site too often reminds me of Dr. Strangelove. In this case: "Yes, but the... whole point of the doomsday machine... is lost... if you keep it a secret!"
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dwg (profile), 27 Apr 2012 @ 5:01pm

Re:
You don't:

http://movieclips.com/rpCVb-animal-house-movie-double-secret-probation/
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Anonymous Coward, 27 Apr 2012 @ 5:03pm

Re:
Willem and Franz will inform you of a trial.
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Anonymous Coward, 27 Apr 2012 @ 5:04pm

Re: Re:
https://en.wikipedia.org/wiki/The_Trial
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Dazza (profile), 27 Apr 2012 @ 5:19pm

Its a secret
Heres an example!
Apple: "I'm going to sue you for breaching my patent unless you stop"
Any small tech startup: "Stop What?"
Apple: "Breaching our patent!"
Any small tech startup: "What patent?"
Apple: "Its a secret!"
Any small tech startup: "What do I have to stop?"
Apple: "Its a SECRET!"
Any small tech startup: "What happens now?"
Apple: "We go to court, cost you millions!"
Dead small tech startup: "You win, we quit!"

Apple behind closed doors: "Quick get a patent on this, before the small tech startup does! We'll keep them tied up with legal mumbo jumbo if they try anything! - We love the patent system!"
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Anonymous Coward, 27 Apr 2012 @ 5:33pm

Re: Re:
What, did you expect them to actually admit their true motives?
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abc gum, 27 Apr 2012 @ 5:45pm

I guess this is a submarine patent in stealth mode.

Ummm, what does this do to their cherished "willful infringement" claim ? Kinda throws it out the window, eh?
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Anonymous Coward, 27 Apr 2012 @ 6:31pm

Re: Back to Mercantilism
Because the lobbyists say so, I'd image.
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The Devil's Coachman (profile), 27 Apr 2012 @ 6:45pm

Re: Re: Unrealistic
Double Secret Probation. It worked for Dean Wormer. Just ask Bluto.
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Mr Big Content, 27 Apr 2012 @ 6:50pm

Re: Hmmm..
And they laughed at me for pointing this out...
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Anonymous Coward, 27 Apr 2012 @ 7:29pm

It's economically significant to keep patents secret for Patent Trolls to abuse them.
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Anonymous Coward, 27 Apr 2012 @ 9:04pm

Ah yes, clearly...
This explains everything now...

Patents are only a promise that you can sue someone - they have no other purpose now.

The idea here is that you secure a patent not only to allow people to understand how your invention works while you're granted a minimal period of time to monetize on it - but now it's so that nobody knows how it works, but you have the right to sue them if they just happened to have the same idea without copying you.

Patents were never meant to prevent two people from having the same idea - they were to advocate disclosure of your ideas publicly while protecting you from someone blatantly copying your idea and profiting on it before you can...
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Anonymous Coward, 27 Apr 2012 @ 9:11pm

As far as I can tell, this directive seems to be saying that because patent applications might do what the patent system is supposed to do -- help disclose ideas -- we should keep the applications secret. The problem, of course, is that pretty much every patent applicant is going to think their patent is economically significant. The reality is that pretty much no one knows if their patents are economically meaningful until years later when a product is actually on the market. This proposal seems to serve no purpose other than helping companies not to disclose ideas while still letting them get patents.

You're framing it incorrectly. The quid pro quo is that the patentee gets the patent in exchange for disclosing the invention. Since a mere applicant has not yet received a patent, I don't see the point in complaining about the delay in publication.
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Anonymous Coward, 27 Apr 2012 @ 10:47pm

Re: Re:
These dang furriners. They so clever and so smart. Howsa poor ole US boy supposed to compete with them? Why they can invent around stuff, raise money for factories, then they just take over the market! We gotta get sneaky if we gonna beat them. I know, let's just keep everything secret before we spring it on them! Yeah, that'll work!

Commercial competition is good? What are you, an economist or a communist or sump'n?
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Francisco George (profile), 27 Apr 2012 @ 11:11pm

Re: Its a secret
Hi Dazza,

First let me take the opportunity to thank Mike Masnick for mentioning me in his post and to salute my friend Anonymous Coward...long time no talk ;). I'm actually the Press Officer of the Spanish PIRATE Party and member of the National Board.

Your "fiction" conversation is quite real, so real that it already happened, not in the Patent World but in the CopyRight World, It is a terrible and heartbreaking story http://c4sif.org/2012/02/this-is-why-i-pirate-how-a-groundless-copyright-threat-destroyed-a-young-fi lm-students-dreams-and-career/ you can see that, as commonly said, "Reality is stronger then fiction" but reality is harsher 10 years later that studend is still under FOX pressure so frightening that he retrieved his original story at Reddit http://www.reddit.com/r/SOPA/comments/poqvn/this_is_why_i_pirate/ and posted an explanation http://www.reddit.com/r/SOPA/comments/pq8ra/this_is_why_i_oppose_the_mpaa/ he had even to pull off a "making of" from its frustrated Short film on Youtube http://youtu.be/M6j8dtHaokg .

So yes CopyRight and Patents can crush somebody's life for real. That is why We Pirate Parties are proposing alternatives to the actual use of Patents and Copyright. I said Alternatives because we are not against those, but we want them to work in favor of Artists and Public. Two proemintent figures of our movement just released a book about the matter "The Case for CopyRight Reform" http://falkvinge.net/2012/04/24/book-release-the-case-for-copyright-reform/ and we issued a call to the Artists http://falkvinge.net/2012/04/23/artists-worldwide-time-to-show-support-for-liberties-and-the-pirate- party/ and we are very happy to see that some of them already prehearded our call "Comedians Stand Up to Copyright Overprotection" http://wjlta.wordpress.com/2012/04/26/comedians-stand-up-to-copyright-overprotection/
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G Thompson (profile), 28 Apr 2012 @ 12:00am

Re: Re:
Why yes that might work, until they haul you before the criminal courts for industrial espionage, hacking, theft of IP, fraud, and moral turpitude just to make it seem good.

No-one could of invented something independent of the illustrious US inventors who are so much more intelligent than anywhere else in the world. Instead they must be dirty dirty pirate terrorists and must be stopped!

Note: The above is meant to be sarcastic, though sadly in the current economical climate of fear within the USA it probably has more than just a grain of truth to it
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G Thompson (profile), 28 Apr 2012 @ 12:01am

Re: Re: Why 18 months?
Yep, it takes time to invent something after you have an idea written on paper, seems 18months is adequate to the USPTO
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G Thompson (profile), 28 Apr 2012 @ 12:04am

Re: Re:
ha, that brought back memories.

Bluto for the WIN! *now where's that Toga of mine*
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Anonymous Coward, 28 Apr 2012 @ 12:18am

so, they're saying that companies are actually able to capture markets without patents. and that the patent system itself is hampering applicants. what a refreshing bit of self-deprecation.
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G Thompson (profile), 28 Apr 2012 @ 12:22am

Re: Re: Its a secret
Thanks for those links and that extremely worrying story, which sadly is not an anomaly but instead more the norm nowadays.

The Comedy link was interesting, especially since I'm in Australia where comedy (stand up especially) is everywhere and we are even starting to export comedy shows that independents make ("Thank God your here" and "Chasers" for example).

Keep up the pressure always and smile, keeps the bastards wondering ;)
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Anonymous Coward, 28 Apr 2012 @ 4:56am

Re: Why 18 months?
Why do they wait 18 months to publish applications? Why not right away?

Almost all patents are published when the patent itself issues. Up until just over a decade ago, though, nothing was published unless and until the patent was granted. This article is about publishing an application while it's still pending.

The problem with publishing it is that you've then given the inventor's invention to the world without having yet given the inventor the exclusive rights to the invention.

As usual, Mike is broadbrushing over all the nuance, and his distorted view of IP law is causing him to misrepresent the issues.
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DC, 28 Apr 2012 @ 7:37am

Re: Re:
I got that from the article, so I don't see any validity to your complaint.

Also, once the patent is filed, you can go to market. You don't have to wait for the actual grant. Ever see a product marked "patent pending"?
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DC, 28 Apr 2012 @ 7:40am

Re: Re: Why 18 months?
What about the nuance that you can go to market after the application. You don't have to wait for the grant.

"Patent Pending"
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abc gum, 28 Apr 2012 @ 7:54am

Re: Re:
Wow - that's really lame.
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Anonymous Coward, 28 Apr 2012 @ 9:23am

Re: Re: Its a secret
To somehow try and make a big deal about the USPTO directing some questions to the public at the request of Congress points out why it is imperative that you know something about substantive law before waxing poetic.

Worse, though, is then using this non-remarkable matter to rail against copyright law, using as one example comments from an individual to portary him as a "victim", even though his comments contain statements of fact that simply do not compute. The only way to measure the accuracy of what he said must first begin with a copy in hand of whatever it was that was licensed to the party he criticizes. I wonder if it ever occured to him to contact the estate's attorney, with whom he had already dealt, and talk about the matter?

Yours is an opportunistic post about two separate and distinct laws, and the issue you seem intent to decry in one has absolutely nothing to do with the other.
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Anonymous Coward, 28 Apr 2012 @ 12:59pm

Re:
Nah, it would just allow them to tack on 'corporate espionage' charges too.

Obviously it's completely and totally impossible for two people to come up with the same idea, so the second person must have done some hacking and spying to find out about the secret patent, and used it to invent something similar to it.
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Anonymous Coward, 28 Apr 2012 @ 1:52pm

Re: Re: Re: Why 18 months?
You can go to market before filing the application even. So what?
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Anonymous Coward, 28 Apr 2012 @ 4:04pm

Re: Re: Re: Re: Why 18 months?
Unlike the United States, many (if not most) other countries have in their patent laws a requirement known as "absolute novelty". In such countries any disclosure to the public (publication, display, sale, use, etc. in that country or others) bars the subsequent grant of a patent.

The US provides a one year "grace" period, but as a general rule it is wise to file first and exploit later.
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Francisco George (profile), 29 Apr 2012 @ 2:23am

Nuance
Hi Mike,

There is a point we are missing I think in this document. If my understanging of english is good enough, it seems that the applicant of a patent will not be the one that will decide if it should go under the protection of a "Secret Order", that will be the USPTO that will take the decision if the patent is "economically significant" by doing so they will override the will of the applicant. I do think that is one of the danger of this "RFC".
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The eejit (profile), 29 Apr 2012 @ 4:59am

Re: Re: Re: Unrealistic
But that's not Dodecaseptuple Secret Probation. The rabbit hole doesn't go Secret enough!
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The eejit (profile), 29 Apr 2012 @ 5:02am

Re: Back to Mercantilism
Because nations aren't people.
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Anonymous Coward, 29 Apr 2012 @ 9:19am

Re: Nuance
While I am confident that this "trial balloon" will not get past the Q&A stage once it is realized the scope (HUGE)of what would need to be done legislatively and administratively to even implement such a concept, you are correct that "Secrecy Orders" are issued at the direction of the USG. Applicants have no role other than to comply with the terms of the order.

Currently, Secrecy Orders are limited to matters (some classified and some not) associated with national security that are generally within the scope of the classes of information set forth is the Arms Export Control Act (military items), the Export Administration Act (civilian items that also have potential military uses), and the administrative rules enacted in compliance with the mandates contained in these two acts. The AECA rules are know as the ITAR, and the EAA rules are knows as the EAR.

I will say that as a general rule applicants are none too happy when a Secrecy Order is issued since it not only precludes a patent from being issued during the orders pendencies, but because it also greatly limits the information associated the with the inventions that can be disclosed to third parties.

At the same time, however, most applicants and their attorneys are blissfully unaware that the statute governing Secrecy Orders does provide a means for applicants to file claims against the USG for compensation while the Secrecy Orders are in effect. While there are some statutory hurdles that must be overcome to succeed on such claims, it is a provision of law available to applicants to secure some measure of compensation.
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Anonymous Coward, 30 Apr 2012 @ 6:38am

Our government is about roughly 100 corporations. They are going to implode all of it. We'll be fine.
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bongobeans (profile), 30 Apr 2012 @ 8:25am

Re:
The real purpose of patents is to corner the market. Anyone who says otherwise is either ignorant or paid to make-believe.
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Lord Binky, 30 Apr 2012 @ 10:44am

Grinds My Gears
You know why this really Grinds My Gears? They already have this option with federal crime punishments!*

It's called a trade secret, and all but 4 states use the Uniform Trade Secrets act. In '96 the Economic Espionage act made theft and misappropriation of trade secrets a federal crime. When they file their patents, the usually don't update the filings with the important improvements and secrets they've learned**. This is why patent licences often contain the clause that the company will reveal all trade secrets pertaining to the licenced patents.

This is why I think we should just throw out patents, and live and die off of trade secrets, at least that allows for independent invention. Even reverse engineering is acceptable (as it should be).

*Honestly, I can see 2 obvious reasons companys push USTP for this. 1) They like how patent law sentences can market block other companies for Big Money No Whammy No Whammy. 2) The company lawyers are smart enough to know that Companies pay better than individuals, so patent litigation is more profitable than putting a thief in jail.
What I don't get is how companies don't see how these abuses of patent laws hurts the companies more overall than the advantage they get when they occasionally win disputes. It is a childish "If I can't have it noone can" mentality, where companies are sitting there with a shit eating grin knowing they made things worthless to competitors, even if it's worthless to them as well. It is like these companies are so self-centered tha.. Oh, I think I get it now.

**Save the good stuff for another patent right? Yeah..Those silly shareholders love those numbers
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Lord Binky, 30 Apr 2012 @ 11:11am

Re: Nuance
Ok, I can see how on one hand the some people in the government legitimately want the USPTO to be able to stop companies from showing off some important parts of their works. I don't know why this wouldn't be covered with NDA's, Security Clearances,restricted/classified Propriatary Information, and in every other paragraph of gov. contract. So I'm going to assume the intent of this would be something like the a company is building a plant for centrifuge enrichment of depleated uranium. The USPTO does NOT want China* to print the patents and start building their own, when the government would prefer (for the economy's sake) the magic trick be revealed. Even if company originally was wanting to use it to market block another company. Ok, so nuclear stuff is already well controlled by the government so my example isn't realistic(just replace words doodad,gajigger,and wattchmagidget at random until the example makes sense, insanity not included)

Since it would be a third party deciding if this is necessary (of course companies would not be left out of the process *wink wink nudge nudge*)

It honestly just seems like the companies are expanding the tools on the pocket knife they call the USPTO. "Just business" as usual to be king of the hill.

*Chosen at random, I could have picked any other country but I didn't. Proving my selection was random.
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6, 30 Apr 2012 @ 12:29pm

Re: Re: Re:
You can go to market not knowing whether or not you will get a patent? Mhmmm, I see. Don't expect to raise a lot of $ that way.
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RichardM Stallman, 1 May 2012 @ 7:30am

The original purpose of patents in the US was to discourage trade
secrecy. Inventors were offered 17 years of monopoly in exchange for
showing others their technique. This exchange no longer really
occurs, because patent lawyers have worked out how to get broad
patents while concealing the most important knowledge.

Trade secrecy in 1800 was simple: you just didn't tell anyone your
methods. That didn't depend on any government intervention.
Nowadays, information can be distributed massively and still
considered a trade secret, and laws have been passed to help maintain
these secrets. In other words, with one hand the government
facilitates and thus encourages trade secrecy, and with the other hand
it imposes monopolies to reduce the harmful practice of trade secrecy.

What a racket!
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What about the nuance that you can go to market after the application. You don't have to wait for the grant.
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Fantastic Strategy!
I think this is a fantastic strategy. If you do some further digging you will see that the NSA currently has an agreement with the USPTO where the NSA will file for secret patents with the USPTO and then these patents will only be made public if a non-government organization applies for a similar patent.

Fantastic way to ensure economic security.
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