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
    DV Henkel-Wallace, 6 Dec 2006 @ 1:52pm

    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.

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