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littlebluedog
littlebluedog
Tim
Tuesday, May 13th, 2008 04:30 pm
non-obviously

Patent applications can be thought of as arguments: essentially, they argue that a patent should be issued for an applicant's invention. As a result, even though patent apps are dull chunks of technical writing, they're usually written in an extremely passively argumentative style.

The most difficult hurdle to overcome when an app is being examined by the Patent Office is to demonstrate that the invention is non-obvious over what's already been invented (referred to as "prior art"). As such, the primary argument is that the applicant's invention is innovative, such as by offering a new solution to a problem, or a more advantageous method or configuration to accomplish some function.

This leads to really weird writing, sometimes.

A popular, but outdated, way of doing this would be for a patent draftsman to sprinkle certain words into the application hailing the novelty of the invention, as if by adding the right amount at the right time would result in a quick patent. For example, I don't think I've ever come across the word advantageously so many times in a piece of prose as when reading a patent written a couple decades ago. This was done, in theory, to strengthen one's case that the invention disclosed in the app is patentable -- or, for some ambitious draftsmen, that everything in the app is patentable, sometimes because during prosecution of the app, it might be revealed that more or different subject matter might be patentable than when the patent app was being drafted.

So, in some patents, there's an advantageously every paragraph, sometimes in every other sentence. This trend was so popular that the use sometimes seems completely indiscriminate, covering both the innovation itself as well anything else in the application, even stuff that's been around since, say, the wheel: "In Fig. 3, tab 22 advantageously slides within slot 24." Really? Who'da thunk that?

Sometimes a patent was obviously written by a draftsman entrenched (or entrapped) in this style of writing but perhaps bored with it, so much so that he ventured to a nearby thesaurus to grab a few new adverbs to use in place of the old standby, advantageously. Here are a couple of sentences from one that I read today:

"The battery box 12 is superiorly closed by a cover 14."

"The cover can also innovatorily be fitted with a testing button 25 to indicate the state of charge of the battery."

In the end, much of what you pay me for is simply to interpret what's really being said from what's been written.

And to conduce additional obfuscation on your behalf. :)

Tags: ,

11CommentReply

pygmymetal
Other LJs are available....
Wednesday, May 14th, 2008 12:38 am (UTC)

My brother is a patent attorney! :D


ReplyThread
akemi42
akemi42
Patent Counsel for Adrian Veidt and Tony Stark
Wednesday, May 14th, 2008 12:48 am (UTC)

I think some of the tendency to put advantages into the application is also influenced by European practice which uses the problem-solution approach to prove inventive step which is basically non-obviousness.

Those adverbs are pretty ridiculous though and they open the door for the alleged infringer to argue he is not infringing because what he is doing does not really fit with the chosen word.

Speaking of European patent law, did you read my post here?


ReplyThread
littlebluedog
littlebluedog
Tim
Wednesday, May 14th, 2008 03:16 am (UTC)

Just about every jurisdiction besides the US uses the problem-solution approach. I don't know what we're thinking. Maybe we think we're being innovative.

The adverbs generally aren't included in the claims, so I'm not sure how arguing that something that does the same thing, but "disadvantageously," could exculpate an infringer.

I've read a bunch about that case, so I'll give it a read, thanks!


ReplyThread Parent
akemi42
akemi42
Patent Counsel for Adrian Veidt and Tony Stark
Wednesday, May 14th, 2008 06:11 pm (UTC)

Well the claims are interpreted in light of the spec so I think there is a limiting argument there that I wouldn't be ashamed of making.

Also before I started working in Europe and handling applications all over the world, I was told that all countries use the problem solution approach. In practice I don't think they do. A lot of Far East countries will allow a patent if you amend the claims the conform to the US counterpart. I have rarely had to use the true problem solution approach even in Europe.


ReplyThread Parent
bellybalt
bellybalt
Belly
Wednesday, May 14th, 2008 01:27 am (UTC)

Maybe you should weigh in on the "photographer's rights" post in DP! :)


ReplyThread
luvsammy
luvsammy
Samalamity
Monday, May 19th, 2008 08:30 pm (UTC)

oo, that sounds interesting! Was this post written on the 13th? I wanna find it.


ReplyThread Parent
bellybalt
bellybalt
Belly
Monday, May 19th, 2008 08:35 pm (UTC)

http://community.livejournal.com/damnportlanders/12100799.html

Its at 199 comments. Good luck! :)


ReplyThread Parent
luvsammy
luvsammy
Samalamity
Monday, May 19th, 2008 08:31 pm (UTC)

This seems like the perfect post in which to ask you if it's possible to patent an idea. My mom told me about something she'd like to patent that she hasn't seen anywhere else, and wants to know whether an idea can be patented before the thing is actually made.


ReplyThread
littlebluedog
littlebluedog
Tim
Monday, May 19th, 2008 08:40 pm (UTC)

Yup, if you know how to make it.


ReplyThread Parent
luvsammy
luvsammy
Samalamity
Monday, May 19th, 2008 08:43 pm (UTC)

Hmm...she knows what it would consist of and how it would be put together, but would she have to submit technical guidelines and drawings and such with an app like that?


ReplyThread Parent
littlebluedog
littlebluedog
Tim
Monday, May 19th, 2008 08:53 pm (UTC)

There's a requirement that a patent application has to disclose the best mode of practicing the invention. In other words, the best way the inventor knows how to do it. Usually inventors have sketches and/or designs, at least, if not a prototype, that a patent attorney can discuss when writing the patent app (the more we can get from the inventor, the better), in order to satisfy this requirement.

But how much disclosure is necessary is really dependent on the invention and the technology it incorporates. For example, everyone knows how a mousetrap works, but say her invention is to put a spring in a different place, which results in an amazingly new efficient and effective design; if she can tell me where to put the spring and how the repositioning of it has the result, that can be enough for me to write the app. On the other hand, if she says she has a perpetual motion machine that runs on hamsters, I'll need a bit more detail.


ReplyThread Parent