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.

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Comments on “Patent Lawyers Taught To Make Patents As Vague As Possible”

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Terry Steichen says:

Lawyers and all that

Anyone who files a patent is SUPPOSED to define the patent as broadly as possible while complying with the novelty and unobviousness restrictions. There’s nothing whatsoever wrong trying to do 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.

misanthropic humanist says:

patent alternatives?

I think we all realise that right now patents are anti-progressive.
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.

Scott (user link) says:

The Examiners do a pretty good job

From my experience working with the patent office in prosecuting patents, the patent examiners do a pretty good job of only letting sufficiently narrow patents through. That’s their job. Of course, they are very rushed, and don’t (or can’t) always take the time to really understand the invention, but that’s another issue.

DV Henkel-Wallace says:

Depends on the domain

I would agree with Messrs Humanist and sick to the extent that the apply in the computing field where the threshold is extremely low. In certain other domains the issue is less clear.

However without those elements (prior art etc) it seems such a patent should be harder to defend, not easier. BIANAL

Oh and in patent-land, or at least as far as the USPTO and the EPA are concerned, “prior art” means “earlier patents.” The examiners don’t seem particularly interested in nonpatent prior art. I don’t know what the deal is there.

|333173|3|_||3 says:

Public liscence

You could patent an idea, then relaese it under a liscence similar to the GPL for a fee of $0.00, or, if this is not permissible, a peppercorn rent (token amount, such as a penny). Terms of the liscence would need to include that derivative works must also be patented and liscenced under the same terms, and in the case of software, that it must be released under the GPL

Waldo Hitcher says:


To all intents and purposes patents are never enforced.

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.

Michael Mischnick says:

Simply Not True

Yes, you want the claims to be as broad as possible, but the specification (the part of the patent where the invention is described in incredible detail). Moreover, if the patent doesn’t include a detailed description that enables the invention (and it must enable the invention to the extent of its scope… therefore, really broad claims need really detailed descriptions to support every possible embodiment), the patent is invalid. If the claims actually are vague, the claim is invalid.

Anyone who trains their attorneys to write patents this way is probably committing malpractice.

Chad says:

The patent system is out of control, and obviously has been for some time. Most “inventions” that I encounter are actually pretty darned obvious, using tried-and-true methods and parts to construct the invention. Patent claims are ridiculously broad, claiming far more than was actually “invented” and closing off promising avenues of research that have little or nothing to do with what was in the patent. 99.99% of what is claimed in a typical patent I encounter would NOT work. The 0.01% that would work are not included in the examples, as the patent writer really wouldn’t want to let his competitors know which narrow set of composition, construction or formulation would actually do something useful. The few examples that are included typically kinda sorta work but not really, and are chosen to mislead. The examples often leave out key details, making them impossible to reproduce without “reinventing” anyway. The patents are written in a manner deliberately designed to obscure what little useful information they do contain. The examiners obviously don’t know a darned thing, either. It’s not their fault, though…you can’t expect them to be an expert on everything.

PaulARoberts (user link) says:

Protecting a Patent Space

In light of the broadly written patent, here is an article by patent strategist, Andy Gibbs, on another approach to patent protection. It discusses how attorneys writing just one patent may not be in the best interest of the client. There are times when protecting an entire patent space the best approach.

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