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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  1. identicon
    Chad, 29 Dec 2010 @ 11:10am

    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.

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