Tags: patents

little blue dog

how do I shot web?

A patent application, once filed, is kept confidential for 18 months by the US Patent & Trademark Office, which then publishes the app as a publicly available document.

Apps are examined by USPTO personnel called Examiners, who work in different technology groups called art units. Depending on the backlog of a particular art unit, an app might not get picked up by an Examiner for a couple years after it's filed.

The first thing an Examiner does with a new app, once it reaches the top of his pile, is conduct his own search in the USPTO databases, which brings up, among other references, issued patents and published applications, all of which is collectively referred to as prior art.

After the Examiner determines whether the claims in the app (i.e., the invention) are anticipated by, or are obvious in light of, the prior art, he explains his reasoning in a communication to the patent applicant. If claims are rejected (and they almost always are), the Examiner has to cite the references over which the claims are rejected.

Occasionally things go amiss. Examiners are human; they make mistakes. And when they do, they're funny.

In this recent communication, the prior art cited to reject the claims is the publication of the app being examined.

I'm not sure which is worse: that the Examiner cited the application against itself, or that he considers some of the claims to only be obvious in light of it.
little blue dog


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A popular, but outdated, way of doing this would be for a patent draftsman to sprinkle certain words into the application hailing the novelty of the invention, as if by adding the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. :)
little blue dog

patent fun

More than 7 million things have been patented in the US. Here's one:

Yeah, it's a stick.

There are essentially three qualifications an invention must have in order to be granted a patent. The invention must fall within one or more patentable categories (i.e., it must be a man-made article, composition, process, and so forth), the invention must be novel (i.e., someone can't have invented it already), and the invention must be non-obvious when viewed against what's already known (called "prior art"). Obviousness is assessed relative to someone skilled in the particular technology.

Unfortunately, many patents get granted on inventions that don't fulfill these requirements. This can be because a patent attorney does some slick talking to the US Patent & Trademark Office (USPTO), because the USPTO personnel don't take a close enough look at the prior art, or because someone just made a mistake.

Case in point: the image above is from US Patent No. 6360693, for an "Animal Toy."

Patents include one or more claims, which set forth the subject matter that defines the invention. Claim 1 of this patent follows:
          1.  An animal toy, comprising:
              (a) a solid main section having a diameter and a longitudinal
          length and extending a predetermined distance along said longitudinal
          length; and
              (b) at least one protrusion attached at one end thereof said main
          section and extending a predetermined distance therefrom and wherein 
          said at least one protrusion includes a second longitudinal axis that 
          is not in parallel alignment with a first longitudinal axis of said
          solid main section;
              and wherein said animal toy is adapted to float on the water.
Yup, still a stick.

Admittedly, the point of this exercise is for a good chuckle, but I also believe it reflects a common shortcoming of the US patent office, which is that the Examiners have a myopic tendency to restrict their searches to prior patents and published patent applications, rather than actually looking out in the world to see what's there. This tendency weakens the public's perception of the patent system, because sometimes it results in ridiculous patents like this one. So although it might look impressive, this patent is probably worthless, because it shouldn't have issued in the first place. If the owner tries to enforce it against someone else who's selling a doggy stick toy, the patent would probably be invalidated pretty quickly because it's certainly not a novel concept, nor could it possibly have been considered non-obvious to make an animal toy that floats and looks like a stick.