The patent system in general and the USPTO in particular is a very strange amalgam. As a holder of multiple patents (both hardware and method/soft), I've found the process to be extremely odd.
First you have to phrase whatever your technology involves in a legal vernacular that is weirdly constraining and rarely maps well onto what the thing in question actually does. You always have the sense that you're playing a game of legal-mumbo-jumbo performance art more than actually describing an invention.
Second, you then have to interact with patent examiners. Some are great, many not so much. One I encountered was possibly the dumbest person I have ever met. Thick as two short planks with two extra short planks nailed on.
Third, the process just seems to go on and on. The examiner will make an objection or point to prior art. These actions may have little basis in logic or common sense, but they do seem to move pieces of paper from one box to another. Meetings occur with the examiner and/or their supervisor where your jaw will drop at how little anyone involved understands the technology being claimed.
You can cut through a lot of this with good legal counsel, but that is really just contributing to the gamesmanship of the whole process.
And, in the end, a patent is a pretty meaningless thing. A portfolio of defended patents might be an "Intellectual Property" asset (what an awful term). But so many people have to jump through the process just as a defensive act so they have a sliver of reassurance that using the novel thing they came up with will not lead to immediate cease-and-desist injunctions from IP-fortified competitors. What a collective waste of human creativity.
A good lesson I learned from one of my patent attorneys was: "Never try to write claim language yourself." You're much better off writing it in straightforward language that you understand yourself, and let the lawyers translate it into good claims, which you can then review.
Of course this assumes access to lawyers who are familiar enough with the subject matter. But if you don't have that, then you're screwed, and your patents will be weak.
In my submissions to the patent lawyers, I have a section such as "proposed claims" and I write them in conversational language. I explain why I think each claim is important. This is also useful when other people such as managers have to be involved in deciding whether an invention is worth patenting or not.
That is a very good approach imo. It takes into account a very basic truth: As an engineer or scientist, you really do not know how to explain technical stuff to a judge with whom you have very few common professional points of reference. It is the patent attorney's job to translate engineering lingo into something a brain subjected to years of legalese can comprehend or at least handle sufficiently well to make a reasonable decision.
> You can cut through a lot of this with good legal counsel, but that is really just contributing to the gamesmanship of the whole process.
True and true. In some ways perhaps that’s the point. It is a game of sorts, it is business competition; businesses temporarily monopolizing business on inventions in return for disclosing them. And it makes sense that legal protections for businesses are better & easier for those businesses when they spend money on lawyers, if a little pessimistic. Unfortunately the system is somewhat motivated to try to cut out people who can’t afford lawyers.
You mentioned bad/dumb patent examiners. I’ve never worked with them and only worked with patent lawyers, and I have to say I’ve been constantly impressed with their ability to absorb, understand, and describe highly technical work in legalese (and yes the language is sometimes performative and can sound funny to engineers). Teams creating these inventions take months and years to make something patentable, and when I think about how the lawyer’s job is to understand these new inventions in a short amount of time, over and over, week after week, I feel like they have a hard job and I’m routinely surprised at how well and how quickly they understand it.
>> I’ve been constantly impressed with their ability to absorb, understand, and describe highly technical work in legalese (and yes the language is sometimes performative and can sound funny to engineers).
This is one of the saddest aspects: so much high-value effort and skill towards an end that, in the whole, I view as a massive drain and retardant on human development.
> This is one of the saddest aspects: so much high-value effort and skill towards an end that, in the whole, I view as a massive drain and retardant on human development.
I think this speaks to the scale of the economy. There is all this waste. Soooo much waste. And patents are just one small aspect of the constant waste. And yet all these businesses and people, in aggregate "the economy", consistantly make money and progress and invent more. It's impressive.
The world does this despite the patent system. Not because of it. If the patent system were to disappear today all that invention would still go on. It would just put a lot of lawyers out of work and make a bunch of rich companies CEOs nervous.
Look at software: It existed for decades and decades without patents and the technological progress in that field vastly surpasses that of any other contemporary science/technology. Then we tried applying patents to software and it did nothing but create a giant mess, destroy small businesses, and make a bunch of patent attorneys (and their friends) rich. There is literally no benefit to society from software patents. It is 100% negative.
- Documenting and classifying inventions is valuable
- people choose to become a patent clerk/lawyer because of the stability. It enables them to take care of family, pursue hobbies, etc (see Einstein).
- the alternative for some is being an engineer but for others it might be a librarian
Patents are close to completely useless as a form of documentation. It's not valuable.
You may be thinking about old patents where people wrote real engineering information with real details on them that excluded non-working alternatives. Patents are not like that anymore.
Then that sounds like a management problem, not a fundamental problem with the concept of patent lawyers and clerks which this poster claimed was a “brain drain”.
It's absolutely a patent review problem. It's probably not caused by individual clerks, as each one of them can't cause something like this alone, but it shows on their work.
Patents have an inherent tension between being as explicit as possible, and leaving enough generality so that it's not trivial to infringe. It's not supposed to be an exact recipe.
The latter points are valid, but for the first - software engineers are usually best advised not to spend time looking at the patent database. For a long time (is it still true?) there were triple damages for knowingly infringing a parent, and in any case the function of the patent database as a publication of ideas is extremely small in software. I have literally not heard of anyone locating something they need to implement by looking at it.
No, but property rights in inventions are supposedly justified by the idea that this publishing will enable implementations when the patent expires. In the software world that means engineers. I don't know what audience you have in mind?
> You always have the sense that you're playing a game of legal-mumbo-jumbo performance art more than actually describing an invention.
My first patent was filed a few weeks ago, with consultations with a patent attorney. This is pretty much the highlight of my takeaway as well.
It helps to have a good understanding of the English dictionary and thesaurus to be able to negotiate wording. But yes, it's still mumbo-jumbo. Inventions might be "obvious" to someone else in the trade, but it's hard to say if it's going to be obvious if it isn't described using that trade's mumbo-jumbo instead of Legal mumbo-jumbo.
> But so many people have to jump through the process just as a defensive act so they have a sliver of reassurance that using the novel thing they came up with will not lead to immediate cease-and-desist injunctions from IP-fortified competitors.
Having a patent is not a defense to an allegation of infringement and if that's what your legal counsel told you, then you should seek new counsel.
The point is that patents are commonly used as a defensive tool, and any good counsel would tell you such. While having a patent is not a defense to an infringement allegation, patents can act as a deterrent to others suing you. The idea is that having your own patents discourages competitors from bringing suit because they will fear that you will turn around and counter-sue them for infringement of your patents. This, of course, does not however address the problem of non-practicing entities.
I'm not sure why you make the assumption that in a patent infringement suit, either parties both have the same practice, or one of them is a NPE. There's no basis for such an assumption. I'm a patent litigator and this doesn't match my experience at all. It is true for very large companies with broad business practices that could be susceptible to a large IP portfolio from a similarly-sized competitor, but to talk of it like it is a practical defense is unrealistic and reflective of a lack of understanding of how patents are usually asserted. It's something for a GC to keep in mind, but isn't really relevant to what would be common advice to anyone running a business that wasn't one the largest in the world.
This assumes the entity suing you actually performs some business other than litigating patents. You could have the largest patent portfolio in the world but if a laywer who owns a single patent files suit against you that "IP war chest" will be completely worthless.
> It's just a way to get a seat at the negotiation table.
It's not needed at all. Valid prior art is a defense to patent infringement because it outright invalidates their patent. Full stop. That's the best leverage out there. It's better than being able to prove non-infringement, because the patent remains in that scenario. So when you have good prior art and they threaten to sue, you say "okay, I'll invalidate your patent in a motion to dismiss". If you want to countersue, now you risk your patent being invalidated and still being found liable for infringement.
> If they sue you, you could potentially countersue them for patent infringement.
Maybe? It depends on the patent and their practice. Just because someone accuses you of infringing doesn't mean their practice infringes your patent. It doesn't even follow at all, actually.
>Yes, it's all a bunch of bullshit, but that is what you get when you have a flawed notion of how inventing works.
I disagree and I'm not going to take your word for it considering that everything wrong I've pointed out about your posts. It is ironic that you use the phrase "flawed notion."
It's not needed at all. Valid prior art is a defense to patent infringement because it outright invalidates their patent. Full stop. That's the best leverage out there. It's better than being able to prove non-infringement, because the patent remains in that scenario. So when you have good prior art and they threaten to sue, you say "okay, I'll invalidate your patent in a motion to dismiss". If you want to countersue, now you risk your patent being invalidated and still being found liable for infringement.
The patent is beside the point of the business of inventing and bringing products to market. It's a legal weapon, not a tool to encourage commerce.
Maybe? It depends on the patent and their practice. Just because someone accuses you of infringing doesn't mean their practice infringes your patent. It doesn't even follow at all, actually.
It's not about protecting your inventions. It's a legal weapon.
>The patent is beside the point of the business of inventing and bringing products to market. It's a legal weapon, not a tool to encourage commerce.
I'm not sure how this is responsive to my comment, which was directed at correcting your misconceptions about how patents work and are used. I think some people would disagree that it doesn't encourage commerce. Were it not for patents, many inventions would be trapped under trade secrets and would never have been disclosed to the public at all. It's also an odd point to make to me as I never suggested that a patent was a "tool to encourage commerce."
>It's not about protecting your inventions. It's a legal weapon.
Yes, a patent is a legal tool. You were the one that suggested owning a patent was a defensive tool, which I explained to you is not really true, most especially in the context you provided of countersuing.
It's a legal weapon because if people use patents, you should have a patent portfolio just to be able to conduct business if money is no object.
I'll concede that it's not really viable for individual inventors and entrepreneurs, especially since lawyers are expensive and energy and effort are better spent elsewhere. Better hope you slipped by unnoticed and never get sued then.
You're looking at one single case while the person you're responding to is looking at this in the context of a legal strategy.
For the individual lawsuit, sure, owning a separate unrelated patent does nothing for you. The lawsuit will be decided based on the facts of the case and the claims of the patent.
But in terms of applying leverage to get the plaintiff to drop their lawsuit, saying "We'll countersue you for billions in damages. You wanna go, let's fight it out in court and we will ruin your business" can be pretty effective. It's sorta like if your car gets scratched by a mafia don in the parking lot, you insist on taking him to small-claims court for a few hundred in damages, and then a few thugs show up on your doorstep, hold a gun to your head, kill your dog, and are like "Do you still want to continue the lawsuit? It's your right, but we can make very bad things happen to you."
Yeah, that works if one company is Apple and the other is Samsung, I don't think that's a relevant discussion because it's far from the norm of what actually happens in patent litigation. Acting like posters on HN are going to accrue billion-dollar patent portfolios is one of the more ridiculous things I've seen here bandied as a "strategy."
Many posters on HN work for companies like Apple or Samsung. The solo inventor with a patent is a rarity, and they usually don't have the resources to enforce their patent rights anyway. The path to becoming a patented inventor these days usually involves becoming an employee of a large institution in R&D, signing over all your rights to the patent, talking with a lawyer, letting the lawyer write the patent, and then letting your employer litigate (or not litigate) its defense.
So what they work for Apple or Samsung, they aren't here getting advice on how Apple or Samsung manage their portfolios nor do they have any involvement in it so I'm not sure why that renders my criticism inapplicable. I'm not describing the solo inventor either, so I have no idea why you bring that up.
This entire conversation is in the context of general advice regarding patents and you are here insisting that the strategy of two of the largest companies in the world serve as model advice because some of their employees work here.
Here's the post I was responding to:
> But so many people have to jump through the process just as a defensive act so they have a sliver of reassurance that using the novel thing they came up with will not lead to immediate cease-and-desist injunctions from IP-fortified competitors. What a collective waste of human creativity.
So many do not have to do this. For so many people this is beyond the practical. It's only relevant to the people running Apple or Samsung to collect these portfolios. It's not practical advice for so many people.
No, the "so many people" are the rank & file engineers and researchers who are actually applying as inventors on those patents. They don't make the policies, but they are the ones who have to put up with the bullshit. That's what the "collective waste of human creativity" is - hired researcher types who would rather be, well, researching rather than doing a song-and-dance of describing their inventions in legal terms that will make it past a patent examiner but don't actually work once communicated in those terms, all so their employer can put up legal minefields in the dance of mutually assured destruction.
I hope I'll one day see patents and the legal fiction of "IP" disappear.
They're an obstruction to technological progress, not a help, and a mechanism by which parasitic actors (lawyers etc) can leech of those who're moving society forward (engineers etc).
The solution to stopping competitors copying your stuff can, should be, and is, technology, not statutes.
Unfortunately once something's a statute it's a herculean task to undo it, in stark contrast to engineering - you undo bad things by unilaterally making new good things.
“If you disclose your invention publicly and do not file an application within one year, you could be barred from receiving a patent on that exact invention,”
I am not a layer not patent attorney, but I have extensive experience as a former asset manager of a IP portfolio of an international stock market traded information company and inventor/co-inventor on multiple US and non-US patents and patent applications.
This sentence is poor advice, since the one-year rule exists only in the U.S., whereas other countries have stricter rules. So it is recommended to always keep things secret (meaning you can only tell people under NDA about it) until a patent application is filed. You will normally want to be able to exercise your patent rights (a government-granted, time-limited, territorial monopoly) in multiple jurisdictions, not just the U.S., as your competitors will likely sit not just in the U.S. (if you file only in one country, people can work around your patent by using the method disclosed therein in another, unprotected jurisdiction instead, which is perfectly legal).
Another piece of advice, namely to file a provisional application first, is only advisable if you are not quite ready to file the full application, yet you are afraid someone else may file first. In most circumstances it may be smarter to file a full application as the first action; the reason is that no new material matter may be added to the provisional application, and in the course of writing and "fine tuning" the language of the final application, one often wishes to include additional matter. To sum it up, a provisional freezes the scope of the application, while not providing you an earlier "priority date".
You need to understand IP well to play this game; most people don't. It's also a game with large capital requirements ($100k/lifetime of a patent, including extension fees, foreign filings and translations) and very long time lines (double decades rather than weeks). But if executed carefully, a single transaction (case of patent litigation or licensing) may bring an IP owner more $$$ than they may earn with their normal operational business.
Unless you have a business that can easily support these costs AND a plan to make extra money from the exclusivity that patent award gives you then I don’t see how this makes financial sense for any small entrepreneur.
“If you disclose your invention publicly and do not file an application within one year, you could be barred from receiving a patent on that exact invention,”
Wasn't this rule retired? I vaguely remember something in this regard.
"It's also a game with large capital requirements "
True. And many BS patents from big corporations are getting granted because their lawyers fight day and night to have it granted. And many solid patents from single inventors get rejected. The patent examiner is just lazy, likely does not even read your applications and rejects it on grounds that make it obvious that he has neither, read nor understood your applications (dont ask :-) ). While this can be fixed, it leaves your skeptical about the whole system.
As a holder of multiple patents (some thru employers, and several, now lapsed, that I tried to get personally) the entire system is a joke. As a few people have said here, it seems like it is designed entirely to obfuscate the process, make money for lawyers, and entrench the value of the existing portfolios of large patent holders.
In the process of doing some research on patents a while back I came across this article [0] which really resonated with me.
Part of the problem is that there are no more easy inventions left. The time when you could get a dozen new inventions just sticking a pair of electrodes into a vacuum chamber in your garage is long over.
It took 4 years for me to get any communication from the USPTO after I filed. I had a patent lawyer prepare the application and transmit it electronically. There was a confirmation code of receipt and that was it. Nothing for 4 years and then an office action saying no. Ok, fine. One of the reasons offered was that there was a Chinese patent for something similar, owned by Bytedance. I read their patent and it is a huge word salad of a vast array of concepts, with very little application. When it comes to technology, I believe the whole America patent system is dominated by corporations and foreign players. Despite the new marketing of USPTO there is no way an independent inventor has a chance in this system.
Because patent specialists are experts at defining the widest possible scope for their idea, when I have reason to read a patent I find it a confusing word mess of noise, that does not have any meaningful interpretation until a case is argued in court, at which point the word salad is brought into the appropriate interpreted focus.
I am not convinced an independent inventor is able to ever file a patent that can not be countered from another patent that had no intention to cover the inventor's use case when written, it's just a useful tool to protect the filer in any and all scenarios.
Does anyone - except patent specialists who make their living from this - see value in the patent process at all any more? We're a long, long way from the original intent of the process these days, it seems.
There should be a legally accepted way to publish something, free of cost, that demonstrates a new invention, that prevents other people patenting it, and can allow the person who published it to claim the credit for doing so.
I'm not sure what's so difficult about this concept in the age of verifiable chains of communications and transactions.
There is: Publishing it on a blog or in a scientific publication does that. At trial, your blog can be used to invalidate any patent claims that it predates.
That is supported by the article, but I would find it hard to imagine that an inventor who is trying to assert their rights against a much more well-resourced competitor would want things to go to trial. The article is pretty clear that filing first is what matters, not posting first, and first to file provides much, much, stronger evidence of your claim than a social media post.
Well there’s literally nothing you can do about that when every party has a right to a trial. How are conflicts supposed to be resolved if one party doesn’t want to go to court?
Some other, less expensive, less corrupt tribunal mechanism? I don't think GP is saying courts are bad because they're courts, they're saying US courts happen to be bad and expensive (which is not necessary).
How would that work legally? I’m pretty sure you can’t prevent someone from having to drag them to court with a tribunal, because the party you want to compel to do something has the right to a trial. If apple patents something you think you invented and published first, and you go to the tribunal, but apple says „no, I want a court order“, what is supposed to happen? I don’t think you can just remove the right to a trial (but I’m not a lawyer, so maybe that’s possible?).
Literally what do you expect them to post? Sable is a patent troll who very famously sued Cloudflare, and recently lost. What else could they possibly mean?
What their point is. I don't know who sable is, I'm not a mind reader and searching would just require me to make an assumption as to what their point would have been.
> Sable is a patent troll who very famously sued Cloudflare, and recently lost. What else could they possibly mean?
I don't think that's what the word famous means!
All things aside, I don't think pointing to one instance of this occurring is a great argument. Mind you that the invalidity issue went to a jury which means it escaped at least 3 rounds of determination by a judge, including a JMOL. Meaning that the judge felt there was enough evidence for a jury to be able to find the patents were valid. So, again, I don't think it's the slam-dunk some people seem to think.
No, posting things (for example on YouTube) counts very well as prior art and helps you invalidate (or limit the scope of) patents that appear later.
For a well-known case, consider Hangprinter, by Torbjorn Ludvigsen: a 3D printer without a frame. He had built it and documented the whole thing in YouTube videos. Then someone heard of the idea and went ahead and got a patent on it.
Torbjorn turned on the Internet for help, started a GoFundMe campaign to collect resources, and with the help of an experienced attorney, managed to have the patent limited so much that does not affect almost any other printer. The "experienced attorney" part was the most crucial, in my opinion, and he could not have chosen anyone better than the one he used.
I'm confused because my understanding is that "first to file" rather than "first to invent" is now basically universal.
My assumption was that tagline meant what to said, that it didn't matter when you create or publish something, that the government was open to giving a monopoly to whomever jumps through the legal hoops first.
...which has been a major load of salt I've carried around with me.
When you make a public disclosure (this includes things like "releasing a product that uses that method", fwiw), that starts a countdown clock [1]. When that clock reaches 0, that disclosure is now prior art, and anyone who files for a patent after that point is unable to get a patent for that method. Sufficiently old public disclosure invalidates any patent, independent of any filing system for patents.
First-to-file and first-to-invent are instead what happens if you get two different people who try to file for a patent before that point. In a first-to-invent system, there's an adjudication process that's going to look at all of the internal records to figure out who "invented" the process first (which, in the absence of evidence, is going to default to the first person to file anyways). In a first-to-file system, the first person to get their paperwork in the door is going to get the patent.
This doesn't mean that an unscrupulous person gets to look for public disclosures and rush their own patent applications to beat out the original inventor. You still need to demonstrate independent conception of the idea (although this would likely only be demonstrated in the context of an actual trial).
[1] I don't remember it's length, but I want to say it's like a year.
A public disclosure becomes prior art as of the date it is made public, with no "countdown clock" in most jurisdictions. For example, if you publish a blog article on July 1 describing your invention X, it can serve as prior art for any patent applications claiming invention X with an effective filing date after July 1.
There are nuances however with prior-filed patent applications. While such applications are not immediately public, once they are published (typically 18 months after filing), they become prior art retroactively, as of their filing date.
Even if a person independently conceives of a patentable idea, they shouldn't be able to get a patent for it if there exists prior art (although it obviously happens sometimes because the patent examination process isn't perfect).
> This doesn't mean that an unscrupulous person gets to look for public disclosures and rush their own patent applications to beat out the original inventor. You still need to demonstrate independent conception of the idea (although this would likely only be demonstrated in the context of an actual trial).
IPRs and PGRs can also be used for this, and are cheaper than doing it at a full-blown trial.
That one year grace period is specific to the US and does not apply in most other countries. So by publishing your invention before filing a patent application you create prior art that will stand in your way in most of the world.
These rules only apply when two people with the same invention both file a patent. If you publish something on Monday and someone files a patent (really - a provisional) for it on Tuesday, you are prior art to their patent and can be used to make it "obvious."
First to file determines who gets the patent, if anyone. Anything out in the public as verifiable prior art can invalidate all such patents, giving you (and your competitors) the freedom to operate.
A simple social media post can work as prior art, especially if it has details or some kind of diagram. But, that only limits their ability to patent it. Your own ability to monetise it is not protected by that. For independent inventors, licensing a patent is far more practical and lucrative than actually manufacturing something or releasing complex software packages. If you are raising VC money, having any kind of patent can increase your chances by a substantial factor.
Does licensing from smaller actors happens much in practice? It feels to me as there is a huge asymmetry of the ability of corps either infringing the patent directly, or circumventing it vs an individuals budget for infringement discovery and lawyers. I wonder even if bigger players like universities have much success in licensing their IP.
This has always existed. You disclose the idea. Things that are public cannot be patented.
Put your great idea up on arxiv and it becomes prior work which the patent office can find. Or publish it in some conference. Etc. It gets officially timestamped and you're all done. You don't need any of this useless verifiable chain of communication nonsense. The world figured out how to do this centuries ago in far simpler ways.
Whether the patent office finds your prior art or not, that's a whole other question. They may still grant a patent no matter how obviously it overlaps with prior art. But then you can use your prior art when they come to try and shake you down, if it comes down to that.
It’s easy to fake if you are part of YC. You think they would lose 1B+ potential revenue if the only thing they have to do is to change one database record that nobody except them is monitoring ?
it's pretty hard to unpublish something on the internet though. How many system do you think are consuming HN content? how many consume those? You can't un-ring a bell, so a simple social post is almost always discoverable in the future.
Hi, I work at USPTO, the following statements and opinions are my own and represent me only:
1) While many do indeed file for the broadest patent possible, in my (limited) experience so far this makes an application much easier to reject. The application that I've seen so far that was the most difficult to reject was made difficult by extremely specific claims.
2) The best argument I've ever heard in favor of the USPTO is that it allows small inventors to hedge market competition risk. Imagine you are an AI startup, developing a novel model architecture for a domain-specific application. You file a patent for the method, and once your product begins selling and Microsoft creates a fast-follow product you can sue. Microsoft will have much more to gain from buying your company at that point than giving up the market to some plucky dorks with a Patent, and your IPO is just the cost of doing business for them.
3) To the extent that "it is very difficult to get a man to believe something his paycheck depends on him denying", I am aware of a personal incentive to argue for the utility of the USPTO. Idk what else to say besides offer me a job on your engineering team and I'll quit immediately. (edit: actually I do know what else to say: If you don't care about patents don't apply for one. Fully optional endeavor. If you do care about patents, then I am here to help.)
I remember learning about the pros and cons of patents vs trade secrets a few years ago- it's a lot less cut and dried than that. With trade secrets, you just have to make a reasonable effort to keep them secret, and then if it gets out you can sue for theft (or some such). As long as there's a secret sauce you can keep out of the public eye it's nearly functionally equivalent.
> The application that I've seen so far that was the most difficult to reject was made difficult by extremely specific claims.
Tradeoffs: the narrower the patent, the less useful it is, because it's that much easier for your competition to just tweak something inconsequential.
> once your product begins selling and Microsoft creates a fast-follow product you can sue
Not that easy - you need to be able to afford a patent law fight. Big companies like MS might just take it anyway and risk the lawsuit, because they can afford to drag it out longer than you can stay solvent.
On the other hand, if you go the trade secret route, Microsoft can't fast-follow because you didn't publish the whole thing.
It's not functionally equivalent at all because trade secrets have no term limitation, whereas patents have express term limits.
>Not that easy - you need to be able to afford a patent law fight. Big companies like MS might just take it anyway and risk the lawsuit, because they can afford to drag it out longer than you can stay solvent.
People bemoan plaintiff-side patent litigation financing but this is exactly why it exists and is a good thing, imo.
Having filed multiple patents, it does not leave a good taste in your mouth (esp software patents). You know you are bullshitting but unfortunately it needs to be done because others will do it and deny you to use the invention.
Fully agree. Over 20 years ago, I did the same job as the Patent Engineer (I had a slightly different title, but same role) at a big law firm. Half of the patents I filed were BS software patents for a name brand tech company, and the other half were for actually novel and cool inventions for things like super-efficient distillation/chilling systems for coffee and satellite antennas for moving vehicles.
Getting that job was almost as easy as getting a software job in 2019. I had a masters in EE and a few years of SWE experience. I sent out 5 applications to top local law firms, got 3 interviews, and one offer over the course of a month. Apparently, the bulk of people in that role were post-docs in bio/chem who weren't excited about managing student loan debt while being underpaid lab people. (The EE/CS contingent was 5 out of 30 in the role, and I was the only one with actual SWE experience, so it gave the me and the firm creditability with inventors)
My salary matched my SWE salary, I had my own office + secretary, and the firm paid overtime and law school tuition. They also charged $250/hour for my time. I also only lasted about year in that role since it was very isolating and not collaborative.
The coolest part of that whole experience came a couple years later when I went to dinner with my wife, her close friend, and the friend's serious boyfriend. In the "what do you do" chit chat, he mentioned working with someone on a new way to brew and chill coffee quickly that they were close to bringing to market.
When I asked if it works like [describes invention exactly] his mind was absolutely blown away. As it turns out, I wrote their patent.
This assertion needs a lawsuit and deep pockets. Most startups will not be able to do this.
Infact the patent holder can file a lawsuit against a startup. Now even if the startup can prove that the patent is invalid, it has to spend precious money on the lawsuit.
Yes, we live in a world where patents exist. It's still possible to be correct about certain things in that world, and the fact that one does not like that patents exist doesn't entitle people to be incorrect about how the patent system works.
>"If you disclose your invention publicly and do not file an application within one year, you could be barred from receiving a patent on that exact invention."
Does this mean if I disclose an invention, that nobody can patent it after a year?
This is my explicit reason for writing about BitGrid out in the open, since 2004.[1]
If it turns out to be useful, that's awesome. If not, it's been a fun mud ball to polish.[2]
> Does this mean if I disclose an invention, that nobody can patent it after a year?
Others can. But during their application who is going to tell that there is a prior art? Patent offices only do basic checks on existing patents and not on the wider internet.
Once the others get their patent, you can appeal [1] it.
"prior art" is usually meaningless in a first-to-file country like the USA.
i.e. if you disclose your IP publicly, there is zero protection from getting scooped by competitors and trolls. If you NDA more than 17 entities, than it becomes public domain in some countries.
Patent-pending status is somewhat of a more economical tool, and buys time to entrench a manufacturing product line in a market. A fully complete patent is only useful for litigation and customs enforcement... and can't be revised to cover sleazy IP workarounds.
We only won about 4 out of 7 international scope patents I drafted, so YMMV. =3
In theory you can't patent something that has already been described prior to the filing date. In practice I'm sure there's been things that've been patented that someone else independently invented beforehand. It's also not always clear if something is a new invention or not (e.g., some chemical has been known for a while but someone realized it could be used to treat some disease).
> Now, the patent system may or may not still retain some
marginal utility in a Fortune 500 enterprise. But, as a
Midnight Engineer or other small scale startup, nearly any
involvement whatsoever with the patent system in any
way, shape, or form, is virtually guaranteed to cause you a
monumental long term loss of time, money, and sanity. I'd
guess the main problem is the mythology that has built up
around the patent process over all the years. A mythology
which no longer applies to the Midnight Engineer or to a
small scale startup.
For those who don't know, Lancaster was for decades one of the best-selling authors on electrical and electronic engineering, with columns in popular magazines. He was constantly providing consulting services to engineers who were designing products, too. I don't know if he ever had a commercially successful product himself other than his books, but I still think his reasoning is worth weighing.
> “If you disclose your invention publicly and do not file an application within one year, you could be barred from receiving a patent on that exact invention,” she says. “Because of the ‘first to file’ system, if someone steals your idea by filing first, this can be hard and very expensive to reverse.”
If that doesn't tell you it's an extortion racket on anyone with useful ideas then I don't know what will.
The US is actually permissive relative to other countries. In most countries if you disclose your invention before filing you lose the right to patent it.
Everybody loses right to patent it. Which is fair.
In US someone else can still patent your invention if you didn't. That's where the extortion is to patent it.
ANS encoding was invented and published by it's inventory without patent explicitly for everybody to be able to use it.
And yet Microsoft just patented a subset of it. It was granted a patent on a thing they didn't invent and was already published for the explicit goal of leaving it patent free.
In theory that patent is not valid since it is based on something that was already published, but I agree that in practice some companies will pay to avoid going to court.
I used to make money with patents. I've held six of them. But once US patents were weakened, it was no longer profitable.
The trouble with a weak patent system is that things which used to be patented are now trade secrets. How Waymo and Tesla do self-driving is a trade secret, for example.
I think patents could work again if the key acceptance criteria was that based on the patent alone, a team of engineers must be able to reproduce the invention.
This would eliminate a whole range of ills with the current system that seems to do little except keep lawyers employed.
First you have to phrase whatever your technology involves in a legal vernacular that is weirdly constraining and rarely maps well onto what the thing in question actually does. You always have the sense that you're playing a game of legal-mumbo-jumbo performance art more than actually describing an invention.
Second, you then have to interact with patent examiners. Some are great, many not so much. One I encountered was possibly the dumbest person I have ever met. Thick as two short planks with two extra short planks nailed on.
Third, the process just seems to go on and on. The examiner will make an objection or point to prior art. These actions may have little basis in logic or common sense, but they do seem to move pieces of paper from one box to another. Meetings occur with the examiner and/or their supervisor where your jaw will drop at how little anyone involved understands the technology being claimed.
You can cut through a lot of this with good legal counsel, but that is really just contributing to the gamesmanship of the whole process.
And, in the end, a patent is a pretty meaningless thing. A portfolio of defended patents might be an "Intellectual Property" asset (what an awful term). But so many people have to jump through the process just as a defensive act so they have a sliver of reassurance that using the novel thing they came up with will not lead to immediate cease-and-desist injunctions from IP-fortified competitors. What a collective waste of human creativity.