I do research in computer science and in the last few years, lots of trivial and dumb patents in my field appeared out of nowhere. However, I can only assume that they really are trivial because they are written in a way to claim a lot without actually describing how any of it works. These patents have 0% information in them. What's more, they all read like a rewrite of papers that were published years ago (before the date filed) into lawyer speak with no amount of information. I have no idea how any of these were ever granted since there is prior art all over the place.
Edit: Okay to be fair, there is maybe not 0% but 10% information in these patents, but it's encoded into unintelligible lawyer/patent talk that is not at all fit to convey technical information. They are written in a way to get a monoply on results without disclosing how these results are obtained.
The patents are written with the most broad and generic claims as possible first. Then the claims are re stated like 3 or 4 times, that would seem identical, but each re statement of them adds like one or two words of detail or specifics each time down. (So maybe claim 2 won’t stand up in court, but claim 23, a derivative of 2, will, the idea that you sue for infringement of as much as possible) I’ve submitted a patent before, and hardly Understood my own patent by the time the lawyer was done with it. But after really paying attention, I guess all the technical details are there. I think larger companies that aren’t specifically patent trolls patent as much as possible just for their own defense too.
I read the patents that teammates filed. The lawyers were supposed to talk to the engineer to get the idea before filing, but I got the impression that process didn't always work, and they wrote something nonsensical.
I suspect the real big driving motivation is actually just to make sure the patent isn’t too narrow. If you are sinking time and money into patenting everything, it makes business sense to make it as broad as you think you can.
On the flip side, patents exist probably in part exactly because trade secrets are incredibly hard to keep. People are pretty good at reverse engineering things.
(Note: I am not trying to convey an opinion about patents with any of this conjecture, but if you want mine, I think software patents are fully bunk and other patents should not last nearly as long as they do.)
It's typically considered the best approach to cast a broad net, then narrow down until a patent is granted. That being said, in the US, patents are given on a first to invent basis, so if you are awarded a patent that is overly vague, it's pretty likely it won't hold up if challenged. I find myself questioning the value of a patent office that awards patents that are vague enough that they wouldn't hold up in a dispute.
The main difference between the USA's "first inventor to file" and the "first to file" systems in most of the rest of the world is how disclosing the invention publicly by printed publication, use, or sale before you apply for a patent affects patent eligibility.
In the "first to file" systems, you lose eligibility. In the "first inventor to file" system of the US, you have a grace period of one year from such disclosure before you lose eligibility, just like you did under the prior "first to invent" system.
To a decent first approximation, the change to the US system mostly just affects how things are handled if independent inventors try to patent the same thing.
Under the "first to invent" system, the patent went to whichever applicant invented the thing first. But when is something invented? When you first think of the idea? Or when you have reduced the idea to practice? Or sometime in between?
Under the US first to invent system, it was when you conceived the invention if you then worked diligently from that point to reduction to practice. If you stop so working and resume, your lose the prior invention date and your new invention date is when you resumed working diligently on reduction to practice.
When two or more inventors were claiming the same invention determining who was actually first under those rules could be difficult and messy, requiring hearings, and costing the inventors money for attorneys. Now with first inventor to file, we pretty much don't care who thought of it first--we just care which person who independently thought of it reduced it to practice and submitted their patent application first. That's a lot simpler, and requires no expensive hearings.
If the specification is not enabling and novel to one skilled in the art (much less obvious), then it is not valid. Under rexam or court proceedings they will be worth the paper they're printed on. That's an expensive way to determine things, but it sounds like that particular section of art at the patent office isn't doing much. On the other hand they only have to hide one novel idea and unique claim in the list to have a right to enforce.
I do think the EFF's concern about claims and documentation already debunked/invalid being hidden behind seal is pretty serious and I think judges approving it are doing the public no service.
When you go to court, the presumption is that the patent is valid. The judge is unlikely to be technical, and he must assume the experts at the patent office did their job. Since the patent office basically rubber stamps anything you send to them, it's a very uphill battle to start with.
In my case, we submitted lots of prior art (some over 100 years old) to the court, and of course they shared this with the plaintiffs. I was certain we should be in the clear. However, in the time between receiving those documents and the actual court date, the plaintiffs submitted our list of prior art to the patent office as some sort of addendum. The patent office re-rubber stamped the new stack of paper, and the judge disregarded it during the trial. We lost. I doubt the patent office bothered to read, much less understand, any of it.
I feel very strongly that their patent was not novel, and since I wrote the algorithm which got us sued from scratch as a new college grad with only a bachelors degree, I doubt it was non-obvious to one skilled in the art. Maybe we could've won with better lawyers, but as a small startup, we didn't have that kind of money.
It sounds like you didn't have very good counsel if the court didn't consider clear prior disclosure as demonstrating invalidity.
FWIW in the UK we have expert patent court judges; USA used to have that too, I gather.
>I doubt it was non-obvious to one skilled in the art //
You have to be careful here, "obvious" doesn't quite mean the same as in daily life. It's so easy to see a neat solution to a problem and go "that's so simple, anyone could have done it". Once you've seen things they often seem simple (ex post facto analysis).
I think this is particularly true in some arts where basically every day any ordinary worker invents solutions to problems.
The plaintiffs certainly had a larger legal team. We brought our patent attorney and a trial lawyer on our own dime, and we managed to get some time from the chief patent counsel for a very large company because he had a relationship with one of our investors.
The plaintiffs managed to get jurisdiction in their own city (across the country from ours), and the general belief was that the judge granted this because he wanted a change from the drug trials he normally dealt with. This made it very expensive for us, and they definitely had the home court advantage.
I could whine about a lot of other things. For instance the plaintiffs removed every juror candidate who had any college, leaving only locals who I don't think even understood trigonometry. The fact that you're not supposed to be able to patent math, but somehow math on a computer gets through the patent process, etc...
> ex post facto analysis
I'm not sure what definition of "obvious" survives then. I was out of college for less than 2 months, and I wrote the code in a single evening. The "infringing" algorithm was less than 10 lines.
The jury found that the plaintiffs patents for measuring roofs on aerial imagery were valid, even though every photogrammetrist in the world would say otherwise. Hopefully they'll appeal and have better council...
> The patent office re-rubber stamped the new stack of paper, and the judge disregarded it during the trial.
Not sure I understand this -- are you saying the judge took the PO rubber-stamp as proof that though the prior art might be related, it was not disqualifying?
Indeed, a granted patent includes a list of citations, and the presumption is that the office has found that the cited works are not disqualifying prior art. A published patent is assumed to not be self-disqualifying.
I'm not a patent lawyer, but I've been involved in this stuff, often conducting extensive prior art searches. The gold standard for prior art is a single document that teaches everything in the claims of the patent. Often, folks think that they've found prior art if they find one thing in one document and another thing elsewhere. Nope.
Now if you happen to find the pieces of a claim in different prior documents, then you may be able to demonstrate obviousness rather than prior art. For instance it's generally considered obvious to take two patented ideas and combine them together. But obviousness is profoundly harder to prove than straightforward prior art.
Meanwhile, anything that's taught in the body of the patent, can be added to the claims at a later date. Within some limitations of course. A patent can be invalidated in its entirety, and the holder can submit a completely new claim set based on the original body text.
Thank you for your reply, it does actually change how I see the prior art thing played out.
> Often, folks think that they've found prior art if they find one thing in one document and another thing elsewhere. Nope.
Still, I think there must be something profoundly broken if you find the exact math in an old book, and the new patent basically says, "do that math on a computer".
I'd be inclined to agree with you. In fact, as I understand it there are new rules that specifically address so called "with a computer" patents. You weren't supposed to be able to patent a math formula, so instead, people would patent a machine that carries out a math formula.
There has been a surge in stupid patents because Obama changed the rules to allow patents to be granted to the first person to file for patent, even if the device of process has been in use for 100 years.
Patents are only valid if they relate to new and inventive stuff.
USA came in to line with the rest of the World which uses first-to-file (first to invent means the litigious will always challenge inventorship which is exceedingly difficult to determine as there isn't necessarily a paper-trail).
USA patent seem, to me, to be worse than other places, and first to file works elsewhere suggesting that is not the problem.
Personally I feel the costs system, and low presumption of validity at grant seem more to blame.
First to file vs first to invent only matters if if there are two near-simultaneous independent patent applications on same subject by different parties.
Patents are not like registered marks where you can apply for the same thing over and over; only the original inventor or its employer can apply, otherwise lour patent would be invalidated due to prior art.
In my experience, the (lawyer) part of this fucks the document up so much that it's too depressing to contemplate, and I just let whatever meaningless bastardization of the original go the patent office.
I really like https://www.tdcommons.org/ as an alternative. Any idea can be published as a free for all disclosure. Additionally, it establishes prior art and prevents anyone else from patenting that idea and claiming royalty in the future.
People usually think of incentivizing R&D in general, but patents also help to prevent trade secrets.
A trade secret can be kept secret indefinitely and can potentially be lost if the company loses interest or is shut down. Patents help encourage publishing advances in technology so that they eventually advance the public domain. If they weren't interested in that then they probably wouldn't make patents expire.
Can you give an example of something today’s scientists and engineers could not reverse engineer or make from scratch given a working implementation? Espionage and industry standard will get at most of it too. I don’t know trade secrets are the problem they used to be.
Software patents are entirely useless if you want to implement what is described in the patent. Even the best intentioned patents are too vague and generalised to be of any use at all. And the patents filed by trolls are a mix of outlandish unworkable misleading claims, and bald-faced gibberish.
Can someone on HN recommend a patent attorney that works with early stage startups? I'm self-funded and want to protect the novel work I've done in the signal processing domain from being copied by a big player with deeper pockets. If I don't protect myself a team of domain expert engineers could duplicate my work.
The implementation of the goal is a hot mess. Because punitive damage is a thing, anytime working for some other form is generally discouraged from even reading them, lest the owner can prove willful infringement.
> In exchange for the right to sue others to stop using the invention, patent applicants have to disclose enough information about their invention to allow others in the field to make and use it.
This seems unnecessarily stiffling. Can't we change this so that anyone can still use the patented tech, but at a reasonable price?
This is already how it works. A patent holder can license the right to use the invention for a fee. You can't have the right to charge for something without the legal right to prevent someone from using that thing without paying you.
Unless you have a war chest behind you getting a patent is a huge gamble especially when your invention becomes successful. When it does those with a war chest jump in and use the PTAB to invalid your patent. You can even hear judges on Shark Tank like Damon John say/ponder on the show is a patent worth getting as he notes the PTAB issue.
Further, Google and it's ilk changed the game in their favor when they lined the pockets of congressmen/women to change the law from first to invent(those with money) to first to file(the true inventors with little resources/power).
If your goal is to exit early through (acquisition by a company with pre-existing complimentary war chest) then it's in your best interest to file for a patent as they can acquire and defend.
> Further, Google and it's ilk changed the game in their favor when they lined the pockets of congressmen/women to change the law from first to invent(those with money) to first to file(the true inventors with little resources/power).
But it seems like the vast majority of the world uses first-to-file.
Correct, but first-to-file is not as friendly to entrepreneurs. In first-to-invent prior art was at least a line of defense for a company defending themselves against a spurious patent troll. (One that STILL would cost money to defend in court most of the time.)
With the change in the system, my understanding is now it is 6 months after publication to challenge a patent with prior art. And thanks to the way they are worded... good luck actually finding one when it happens.
No, I've not at all done this but it would be interesting to see the percentage of patents in the US filed by individuals versus companies over the last 20-30 years.
You seem to have misunderstood. It's first to file, but prior disclosure invalidates the patent (except a few edge cases to allow for trade shows, I gather).
Prior disclosure is any documented teaching of the embodied idea the patent seeks to protect. In the UK a classic example was a dog doorbell having a comic cited against it.
Patents are primarily about getting a limited time monopoly. Publicly disclosing the invention is just a direct consequence and not a virtue of the patent system. So please stop marketing it like that. In many cases it is completely irrelevant because the invention is sold and can be reverse engineered.
Also:
> Encouraging people to share information so that others can use it to make further advances is the whole point of the patent system.
This is meant as a joke, right? Is locking down a field of engineering for 20 years promoting further progress? Maybe it promotes the invention of sub-optimal solutions to work around the patent but that's about it. The latest example I can think of is all-in-one liquid cooling designs: https://www.gamersnexus.net/hwreviews/3517-swiftech-h360x3-d...
> Patents are primarily about getting a limited time monopoly.
Nope. Patents have always been about encouraging public disclosure of secrets. This has been the case since they were invented by the Venetians in order to break trade guilds and their literal on-pain-of-death secret maintenance.
The idea was to offer the secret-holder a deal: if you reveal your secret, you get a significant but temporary government-enforced monopoly on use of that secret. If you don't reveal your secret, then you'll just have to hope it doesn't get leaked.
The monopoly is the tool of patent law. But the purpose of patent law is disclosure of information.
Patents have always been about encouraging public disclosure of secrets. ... The monopoly is the tool of patent law. But the purpose of patent law is disclosure of information.
I like that formulation. But in that case we shouldn't be granting patents on things that can be immediately (or even within 5 years) reverse engineered from working examples.
I genuinely like that idea. We should change the patent approval process work like an episode of penn&teller's "Fool Us", where the patent office has to guess what your patent is, before reviewing it. If the patent office is right, rejection; wrong, approval. We could televise it and subsidise the whole thing with advertising revenue. This is not a joke.
Are you suggesting you have to make an example, so if I design a new rocket engine I have to have 10s of millions of $$$ to spend on making one before you'll give me a patent, and then you might decide it was obvious? And I have to disclose it in public prior to getting protection?
Well over 100,000 utility patents get granted every year in the US alone [1]. Care to show me all the secrets we would been unable to reverse engineer or independently invent without the patent system?
The whole original idea behind the patent system is that you would be granted a time-limited monopoly in exchange for making your idea “patent” (frequently pronounced “pay-tent”, and meaning “obvious”), rather than trying to maintain it as a trade secret (in the formal, legal sense).
You can argue that the monopoly term is too long, or that patents are being granted on things that are already obvious, or that you don’t like the whole idea of it; but the fact is that the monopoly vs. disclosure trade-off, and its public utility, was and is the intention behind the patent system.
Adding to pbhjpbhj's reply:
The name "patent" goes back to letters patent which, among other things, was the practice of monarchs granting monopolies to favored cronies. This resulted in the Statue of Monopolies in England 1624 that restricted the monarch to grant monopolies to inventors only. Going forward this would form the basis for the modern patent system in the United States.
Saying that the patent system is primarily about disclosing inventions is a bait because it most often does not matter. How important is it that William C. Hooker who invented the spring mouse trap (patent US528671A) had to publish the invention?
If you want to sell your invention you almost always automatically reveal the secret.
Before patents, businesses depended fully on trade secret, meaning developments would be made and lost over and over, and progress on a particular technology would be a lot slower because nobody could ever build off of eachother's work.
The patent system today is not really what it was meant to be, but the original patent system I think was an improvement over the status quo of the day.
That is not true. In fact the case if the steam engine highlights how harmful patents are. When the patent expired the amount of innovation flourished.
Patent law, like many other economic interventions relies on claims and arguments that have little to no evidence.
Edit: Okay to be fair, there is maybe not 0% but 10% information in these patents, but it's encoded into unintelligible lawyer/patent talk that is not at all fit to convey technical information. They are written in a way to get a monoply on results without disclosing how these results are obtained.