Off topic though this certainly is, I'm posting this because I know that
several people who frequently post in rraa have one or more patents, and
there have over the years been a number of comments here about the sorry
state these days of patents and the patenting process in the USA. Moreover,
with some notable exceptions, postings in this newsgroup often show
intelligence and thoughtfulness on the part of the people making the
postings, more often than in many of the other newsgroups I read.

With that said, I'd enjoy reading comments on the NY Times article
"Inventing a Better Patent System", which you can see at
http://www.nytimes.com/2009/11/17/opinion/17pozen.html?hp.
The author makes five specific recommendations for amendments to patent law
which he believes would improve the situation. I'm a (retired) pure
mathematician with no patents whatsoever, and my knowledge of law is nil.
But what he says seems to make sense to me.

If you can illustrate why you agree, or disagree, with points made in the
article by referring to antenna patents (or other patents on related
matters) with which you are familiar, that would be good, and it would make
the issue a little less off-topic. Thanks in advance for reading the article
and making your comments.

David, ex-W8EZE

--
David Ryeburn

To send e-mail, use "ca" instead of "caz".

On Mon, 16 Nov 2009 22:01:41 -0800, David Ryeburn
wrote:

With that said, I'd enjoy reading comments on the NY Times article
"Inventing a Better Patent System", which you can see at
http://www.nytimes.com/2009/11/17/opinion/17pozen.html?hp.

Hi David,

I have patents, and yes the system is broken - but not in the ways
this author describes (but, oddly, is separate from his fixes).

The author comes up with some rather odd objections which are like
moving deck chairs on the Titanic. Some of it is quite naive:
"Yes, it makes renting movies a snap,
but was it really a breakthrough
deserving patent protection?"

The patent examiner is specifically prohibited from denials based on
hindsight. The patent must disclose prior art, and if that art
anticipates the use (as something within the art of the practioner)
then there is a basis of denial, but the examiner cannot make that
leap without this paper trail. One legal tenet a patent lawyer told
me last week was that "Only God can create, man assembles all
invention from other existing ideas."

The following quote is an outright wet-dream:
"One root of the problem is that patent examiners,
many of whom are young or lack practical
experience, are not qualified to evaluate
whether complex claims in biotech or
physics meet the most critical tests."
This is patently absurd from an historical basis. Examiners have
always been young and lacking experience - the office is the first
rung in a ladder of their career as patent lawyers. How any NYT
scribbler would expect the economic model to suddenly invert
(practiced lawyers becoming examiners for far less pay) is misty eyed
in the extreme.

This also brings us to the second glaring error in that quote which I
repeat in part he
" to evaluate
whether complex claims in biotech or
physics meet the most critical tests."
This speaks to the validation of science which is NOT part of the
examiner's job. This is confusing the specification (the description
written in what should be clear English) with the claim (the list of
relationships and associations). Examiners deny a patent on the basis
of the claims made which do not rely on "this proves Einstein was
wrong and I have invented of something that Gauss forgot."

There are very few criteria to be met: is it novel? Is it marketable?
Neither of which demand scientific proof. Someone might demand that
novel requires proof, but this is on the basis of claims alone. Does
your invention's claims appear somewhere else? The examiner is paid
to wade through the 6 million patents to ascertain that.

Now, let's move on to those suggestions.
"To help fix this, Congress should pass an
amendment allowing experts in the field to
submit explanatory or critical comments on
patent applications."
This doesn't go to the matter of claims of prior art. I've spent
enough ink on that.

Next:
"Next, Congress should require that all
applications be made public 18 months
after they are filed."
I would argue 18 months is arbitrary (who is this scribbler working
for?). Why not next week? The proposed solution is to combat what is
called Submarine Patents. Basically, this was responded to in 1995. I
had a patent that was underwater for 4 years. This wasn't out of some
business ploy, but simply because the brief was so huge (several
hundred pages) that it fell behind one of the filing cabinets and was
lost for years.

Next:
"Congress should eliminate the 'could have raised clause.'"
Reasonable.

Next:
"Fourth, Congress should provide limited
new immunity to all inventors who choose
to protect their innovations as trade secrets
rather than patents."
Trade secrets are a risk that should be borne by the one who wishes to
protect their IP through their own devices. This goes into estoppel
and laches - law that has a long history. If you cannot keep your cat
in the bag - so be it. Whatever is being spoken to here in this
author's suggestion does not have to be cloaked in the mantle of
Patent reform.

Last:
"Congress should adopt a first to file rule
for awarding patents between competing parties.
America is the only major country that tries to
ascertain who was the first applicant to invent the
product or procedure."
The second sentence is not true, but when did facts ever matter?
Indeed, the first to invent versus the first to file has been
contentious since Alexander Graham Bell and the telephone (and many
others through the decades). Invention is a populist notion in a
populist nation. Europeans see things as law, not popularity. This,
too, was a topic that has been answered in 1995 and is now being crow
barred to fit globally. We have learned to cope with it over the
centuries and Europe doesn't have a dog in this fight, unless a
foreigner needs coverage here.

Going beyond as there are some interesting things about Patent law to
add to this. You can be sued for practicing your patent! This
usually stuns non-lawyers so an illustration needs to be illustrated:

The LED is patented. As far as the patent examiner can tell, nothing
within the patent identifies any anticipated product outside of its
claims (the inventors didn't elaborate beyond the general notion that
light could be emitted from a semiconductor).

You invent the Red LED. The patent examiner reviews prior art, and
sure enough the LED inventors never anticipated a single wavelength
application. BINGO! Your patent is issued.

You go out, build a plant, produce a bajillion Red LEDs and are
immediately served a cease and desist order for infringement! The LED
patent blocks your patent. The only thing you have gained is a way to
keep the original LED patent holders (and everyone else too) from
making Red LEDs - if it matters to them.

There's a bajillion other oddities, but time has come to close here.

73's
Richard Clark, KB7QHC

Dear Group: Richard has done a good job on the Times article.

I echo that the use of a first-to-invent system fits our Republic's ideals.
The efforts involved in "interferences" where determinations are made as to
who is first are a very minor part of the process.

Left off entirely is the issue of the bonus system used in the PTO that
appears to reward not issuing patents. Issued patents have gone from about
65% of applicants to about 40%, and much more telling is a reported six fold
increase in the number of applications waiting for judgment in the appeal
process. I now tell potential patent applicants that they must expect to
use the appeal process as that may be the only way their application is
evaluated by judges who are not influenced by the bonus system.
Applications take too many years and have become very expensive. Once the
US patent system was the least expensive and was fast.

It is unreasonable to expect things like the Times to understand anything
that is a bit complicated.

73, Mac N8TT
--
J. McLaughlin; Michigan, USA
Home:
"Richard Clark" wrote in message
...
On Mon, 16 Nov 2009 22:01:41 -0800, David Ryeburn
wrote:

With that said, I'd enjoy reading comments on the NY Times article
"Inventing a Better Patent System", which you can see at
http://www.nytimes.com/2009/11/17/opinion/17pozen.html?hp.

Hi David,

I have patents, and yes the system is broken - but not in the ways
this author describes (but, oddly, is separate from his fixes).

The author comes up with some rather odd objections which are like
moving deck chairs on the Titanic. Some of it is quite naive:
"Yes, it makes renting movies a snap,
but was it really a breakthrough
deserving patent protection?"

The patent examiner is specifically prohibited from denials based on
hindsight. The patent must disclose prior art, and if that art
anticipates the use (as something within the art of the practioner)
then there is a basis of denial, but the examiner cannot make that
leap without this paper trail. One legal tenet a patent lawyer told
me last week was that "Only God can create, man assembles all
invention from other existing ideas."

The following quote is an outright wet-dream:
"One root of the problem is that patent examiners,
many of whom are young or lack practical
experience, are not qualified to evaluate
whether complex claims in biotech or
physics meet the most critical tests."
This is patently absurd from an historical basis. Examiners have
always been young and lacking experience - the office is the first
rung in a ladder of their career as patent lawyers. How any NYT
scribbler would expect the economic model to suddenly invert
(practiced lawyers becoming examiners for far less pay) is misty eyed
in the extreme.

This also brings us to the second glaring error in that quote which I
repeat in part he
" to evaluate
whether complex claims in biotech or
physics meet the most critical tests."
This speaks to the validation of science which is NOT part of the
examiner's job. This is confusing the specification (the description
written in what should be clear English) with the claim (the list of
relationships and associations). Examiners deny a patent on the basis
of the claims made which do not rely on "this proves Einstein was
wrong and I have invented of something that Gauss forgot."

There are very few criteria to be met: is it novel? Is it marketable?
Neither of which demand scientific proof. Someone might demand that
novel requires proof, but this is on the basis of claims alone. Does
your invention's claims appear somewhere else? The examiner is paid
to wade through the 6 million patents to ascertain that.

Now, let's move on to those suggestions.
"To help fix this, Congress should pass an
amendment allowing experts in the field to
submit explanatory or critical comments on
patent applications."
This doesn't go to the matter of claims of prior art. I've spent
enough ink on that.

Next:
"Next, Congress should require that all
applications be made public 18 months
after they are filed."
I would argue 18 months is arbitrary (who is this scribbler working
for?). Why not next week? The proposed solution is to combat what is
called Submarine Patents. Basically, this was responded to in 1995. I
had a patent that was underwater for 4 years. This wasn't out of some
business ploy, but simply because the brief was so huge (several
hundred pages) that it fell behind one of the filing cabinets and was
lost for years.

Next:
"Congress should eliminate the 'could have raised clause.'"
Reasonable.

Next:
"Fourth, Congress should provide limited
new immunity to all inventors who choose
to protect their innovations as trade secrets
rather than patents."
Trade secrets are a risk that should be borne by the one who wishes to
protect their IP through their own devices. This goes into estoppel
and laches - law that has a long history. If you cannot keep your cat
in the bag - so be it. Whatever is being spoken to here in this
author's suggestion does not have to be cloaked in the mantle of
Patent reform.

Last:
"Congress should adopt a first to file rule
for awarding patents between competing parties.
America is the only major country that tries to
ascertain who was the first applicant to invent the
product or procedure."
The second sentence is not true, but when did facts ever matter?
Indeed, the first to invent versus the first to file has been
contentious since Alexander Graham Bell and the telephone (and many
others through the decades). Invention is a populist notion in a
populist nation. Europeans see things as law, not popularity. This,
too, was a topic that has been answered in 1995 and is now being crow
barred to fit globally. We have learned to cope with it over the
centuries and Europe doesn't have a dog in this fight, unless a
foreigner needs coverage here.

Going beyond as there are some interesting things about Patent law to
add to this. You can be sued for practicing your patent! This
usually stuns non-lawyers so an illustration needs to be illustrated:

The LED is patented. As far as the patent examiner can tell, nothing
within the patent identifies any anticipated product outside of its
claims (the inventors didn't elaborate beyond the general notion that
light could be emitted from a semiconductor).

You invent the Red LED. The patent examiner reviews prior art, and
sure enough the LED inventors never anticipated a single wavelength
application. BINGO! Your patent is issued.

You go out, build a plant, produce a bajillion Red LEDs and are
immediately served a cease and desist order for infringement! The LED
patent blocks your patent. The only thing you have gained is a way to
keep the original LED patent holders (and everyone else too) from
making Red LEDs - if it matters to them.

There's a bajillion other oddities, but time has come to close here.

73's
Richard Clark, KB7QHC

J. Mc Laughlin wrote:
Dear Group: Richard has done a good job on the Times article.

I agree. I also think that of all the articles I've seen this one was the
best. While it was very limited in its understanding of the problems,
at least it was an attempt to fix the problem instead of scrapping the
whole system or reducing its scope (e.g. eliminating software patents).


I echo that the use of a first-to-invent system fits our Republic's ideals.
The efforts involved in "interferences" where determinations are made as to
who is first are a very minor part of the process.

First to invent has its problems too. Without a system of publication, one
can simply describe inventions in dated documentation and wait for other
people to patent them. Then you just show up with proof of first invention
and collect your patent someone else paid for.

Possibly a system where patent applications are published within 30 days of
recepit and the amount of time to file claims of prior invention are limited
to a year or 18 months.

This would also require the publication of provisional patent applications
which is currently never done.



Left off entirely is the issue of the bonus system used in the PTO that
appears to reward not issuing patents. Issued patents have gone from about
65% of applicants to about 40%, and much more telling is a reported six fold
increase in the number of applications waiting for judgment in the appeal
process. I now tell potential patent applicants that they must expect to
use the appeal process as that may be the only way their application is
evaluated by judges who are not influenced by the bonus system.
Applications take too many years and have become very expensive.

The effect of the bonus system has been to change a patent application from
the final step in the process to one near the begining. This has been a
windfall for the top patent lawyers who can successfully navigate the appeal
process and a disaster for the small inventor or patent agent.

Once the
US patent system was the least expensive and was fast.

I expect that one of the smaller countries with a minimally functioning
patent system will take over. They will, for a large fee, issue a patent
quickly and quietly. Something like for a $100k fee, they will issue a
patent without publication of the application, in 6-8 weeks.

Once they issue the patent, as US patent via the Patent Cooperation Treaty
is assured. It does not matter if the US application takes years or there
are any appeals and so on. You have what is in effect a US patent and just
have to wait for the paperwork to catch up.

It is unreasonable to expect things like the Times to understand anything
that is a bit complicated.

Compared to their usual technology articles, which are just re-aranging the
paragraphs in press-releases, this one was wonderful.

Geoff.
--
Geoffrey S. Mendelson, Jerusalem, Israel N3OWJ/4X1GM

On Wed, 18 Nov 2009 07:04:03 +0000 (UTC), "Geoffrey S. Mendelson"
wrote:

While it was very limited in its understanding of the problems,
at least it was an attempt to fix the problem instead of scrapping the
whole system or reducing its scope (e.g. eliminating software patents).

Hi Geoffrey,

I think they should be sent to the bit-bucket. This is a point where
claims are specific and a huge amount of published patents have
clearly been built from work existing in the Public Domain for
decades.

Going back to the populist nature of an "Inventor," too many are
corporations hiding behind this cultural perception while they crush
innovation with offices full of attorneys hammering down individuals
who can't afford the cost of litigation.

First to invent has its problems too. Without a system of publication, one
can simply describe inventions in dated documentation and wait for other
people to patent them. Then you just show up with proof of first invention
and collect your patent someone else paid for.

It doesn't work that way. What you are describing is an IP that has
been ceded to the Public Domain, not patented as if it were a grab at
the brass ring.

Possibly a system where patent applications are published within 30 days of
recepit and the amount of time to file claims of prior invention are limited
to a year or 18 months.

Prior art is not a limited, moving window in time. Otherwise, we
would be flooded with re-inventions of the telephone every year and
half by your method.

This would also require the publication of provisional patent applications
which is currently never done.

They are always done. For the bulk of invention, provisional patents
are often copies of press releases, journal articles, degree work,
papers for presentation and so on. And it hardly matters unless the
party files an actual application. Again, this was put to bed in 1995
and is supported by the international field. In fact, you need only
attach one claim to a provisional patent and you have international
protection. The claim can even be changed later!

The effect of the bonus system has been to change a patent application from
the final step in the process to one near the begining. This has been a
windfall for the top patent lawyers who can successfully navigate the appeal
process and a disaster for the small inventor or patent agent.

Sound like the Patent system I was very much a part of in the 80s and
90s. Being a small inventor, it was actually quite to my advantage
(the market practicalities aside).

I expect that one of the smaller countries with a minimally functioning
patent system will take over. They will, for a large fee, issue a patent
quickly and quietly. Something like for a $100k fee, they will issue a
patent without publication of the application, in 6-8 weeks.

Once they issue the patent, as US patent via the Patent Cooperation Treaty
is assured. It does not matter if the US application takes years or there
are any appeals and so on. You have what is in effect a US patent and just
have to wait for the paperwork to catch up.

I would think that 14 years of experience would have revealed this
anticipated grief by now. Getting a patent faster does not make the
ideas come sooner to submit that fast-track application.

73's
Richard Clark, KB7QHC

On Nov 18, 11:00*am, Richard Clark wrote:
On Wed, 18 Nov 2009 07:04:03 +0000 (UTC), "Geoffrey S. Mendelson"

wrote:
While it was very limited in its understanding of the problems,
at least it was an attempt to fix the problem instead of scrapping the
whole system or reducing its scope (e.g. eliminating software patents).

Hi Geoffrey,

I think they should be sent to the bit-bucket. *This is a point where
claims are specific and a huge amount of published patents have
clearly been built from work existing in the Public Domain for
decades.

Going back to the populist nature of an "Inventor," too many are
corporations hiding behind this cultural perception while they crush
innovation with offices full of attorneys hammering down individuals
who can't afford the cost of litigation.

First to invent has its problems too. Without a system of publication, one
can simply describe inventions in dated documentation and wait for other
people to patent them. Then you just show up with proof of first invention
and collect your patent someone else paid for.

It doesn't work that way. *What you are describing is an IP that has
been ceded to the Public Domain, not patented as if it were a grab at
the brass ring.

Possibly a system where patent applications are published within 30 days of
recepit and the amount of time to file claims of prior invention are limited
to a year or 18 months.

Prior art is not a limited, moving window in time. *Otherwise, we
would be flooded with re-inventions of the telephone every year and
half by your method.

This would also require the publication of provisional patent applications
which is currently never done.

They are always done. *For the bulk of invention, provisional patents
are often copies of press releases, journal articles, degree work,
papers for presentation and so on. *And it hardly matters unless the
party files an actual application. *Again, this was put to bed in 1995
and is supported by the international field. *In fact, you need only
attach one claim to a provisional patent and you have international
protection. *The claim can even be changed later!

The effect of the bonus system has been to change a patent application from
the final step in the process to one near the begining. This has been a
windfall for the top patent lawyers who can successfully navigate the appeal
process and a disaster for the small inventor or patent agent.

Sound like the Patent system I was very much a part of in the 80s and
90s. *Being a small inventor, it was actually quite to my advantage
(the market practicalities aside).

I expect that one of the smaller countries with a minimally functioning
patent system will take over. They will, for a large fee, issue a patent
quickly and quietly. Something like for a $100k fee, they will issue a
patent without publication of the application, in 6-8 weeks.

Once they issue the patent, as US patent via the Patent Cooperation Treaty
is assured. It does not matter if the US application takes years or there
are any appeals and so on. You have what is in effect a US patent and just
have to wait for the paperwork to catch up.

I would think that 14 years of experience would have revealed this
anticipated grief by now. *Getting a patent faster does not make the
ideas come sooner to submit that fast-track application.

73's
Richard Clark, KB7QHC

What is lost in this review of the frailty of our patent system is the
destructive interference
of what we refer to as justice. Not only does law change with the
current meaning of the word in this country other countries ensure
that the intent of the written word is determined
at the point that the law is made. It is for this reason that the U.S.
has more lawyers than any other country as all laws as with the
written word changes with the passing of time. At least in the eyes of
experienced debaters. Another deterent to fairness of patent
protection
is that other countries has that the "loser pays ALL costs generated
by the suit" !
In the U.S. for some reason each pays their own costs regardless if
the charge was malicious or not. Thus we have a continuance of suits
and countersuits depending on the finances of both or the amount of
money that can be made during the generated passing of time. Many
examples of this can be seen in the many pharmacutical cases.
Worst of all, with respect to fairness in the protection of patents,
is when the true owner of a patent has not the funds such that he can
keep pace with the challenger such that the time comes when he has not
the funds to appear in court and thus the challenger unjustly wins his
case. Not on the merits of justice but on the amount of funds he is
willing to spend compared to the losses incurred by violating patent
law.
Present patent law attempts to combat these problems by giving prime
responsabiulity to the PTO but we are finding that justices resent
this action and are more than willing to accept cases where they gain
back their original powers.which is not always dependent on justice.
From the congressional side of any so called change in justice, one
cannot ignore that the patent system is a "cash cow", revenue that any
congress is not willing to give up as part of his rescources for
spending.