I think many don’t understand how patents work. To infringe on a patent you must infringe on _ALL_ claims. Not infringing on any single claim is enough to state that you don’t infringe on the patent.

With most patents I’ve been a part of there is a “key claim” (or two). This is the part where the real “patent” is, but it is often surrounded by 20 other claims that are pretty mundane.

This is why patents often look like they are copies of existing work. You must read every single claim and understand them all. I must admit that even for patents I’ve been an author of, after the patent attorney has done their magic on it I have trouble following what I invented!

But I think what you’ll often see is that if you read through them carefully you’ll run across something that makes you think, “Oh, OK. That’s pretty clever.” It maybe be claim 5 or claim 22, but it’s often in there. Not always, but often.

I’ve yet to see anyone who has any experience in the wireless space look at any of NTP’s patents and not laugh outloud that they were granted.

They are bogus. The patents were incredibly broad on an obvious idea.

I have seen the attitudes exemplified by the above so many times that long ago I ceased even trying to count their frequency. In part this was because I noted that in the vast majority of cases these attitudes were being expressed after the fact at a time when the solution had been disclosed to the world. However, under our laws the critical question is “would the ‘claimed’ invention have been obvious at the time the invention was made to one who at that time was a person having an ordinary level of skill in the art to which the invention relates?”

In the technical environment I was working as an attorney virtually all of the subject matter experts were PhDs who had been at the game for 20, 30, and even 40+ years. They obviously were persons of extraordinary skill in the art, persons whose knowledge of the relevant technology far exceeded the above legal standard of one having “ordinary” skill. So, there I was talking with technology experts widely recognized by their peers as outstanding engineers and research scientists whose work was recognized as second to none.

In each of these instances I would sit down with one or more of them who were absolutely and unshakably sure that an invention was obvious. Of course, given their high level of skill it they became convinced to reconsider their initial impression of the invention and arrive at the conclusion that it was not in fact obvious, then a fortiori it follows that the invention would most certainly have not been obvious to one in their technological field having but ordinary skill.

What I found was almost always the case is that after reviewing a patent, reviewing all available prior art (which in law is significantly broader than merely printed publications), and then looking at the claims and dissecting what the claims really covered, it was indeed quite rare that these experts did not reconsider their original impressions and change their minds. Mind you, this was not always the case since mistakes can be made in the process of issuing a patent, but those situations seemed to be in the minority of instances.

Why is this important? Too often proclamations of obviousness are made with a grasping the understanding that will the specification of the patent is descriptive in nature, it is the claims that are the “meat” of a patent. Once this was explained to the experts, and once they began to really take a look at what the claims actually covered, previous views began to change rather quickly as they realized what in fact the patentee’s had actually done. In many, many instances their original jaundiced eyes were replaced by insight that much more was actually involved and led a very large number to make statements such as “I did not realize what this was really all about, and now that I know it is clear that the inventor really did something quite unique and not at all readily apparent.”

It is important to note that education was a necessary presursor for them to take note of what was actually done, an education that far too often, and unfortunately, not presented in an understandable manner.

The point to be made here is that while I have no doubt you have spoken to many telecommunication engineers, I do have to wonder if anyone has ever taken the time and effort to provide the necessary precusor education. My experience teaches me that this far too often not the case, and it is in significant part due to this that so many proclamations are made that an invention is plainly obvious. Sometimes claimed inventions are plainly obvious and the patent is susceptible to persuasive arguments that the claims are of dubious validity. Many other times, however, precisely the opposite conclusions are reached after the much needed education has been presented and assimilated.

Unless the time has been taken to present the necessary education, it is difficult to place blind faith reliance on matters of first impression by persons who tend to focus on broad concepts, and not the actual substance of a patent.