Dec
Unfair patents
As a technology consultant, one of the things I have to keep up with is patents that have been issued or applied for. We here alarming stories about how bad the patent system has become, how the times between filing and grant have been extending, and how so many patents get through that, well, just should not be allowed. But is it all the fault of the examiners? Are we, the engineers making things worse? I most certainly think so. Let me cite a couple of examples, but all names and numbers will be removed to protect the sort of innocent.
One patent caught my attention today. It is an application, so at this time, there is plenty of chance that the examiners will catch this and throw it back at the applicants. Let me give you claim 1:
A test generator comprising: a transaction generator to automatically generate a plurality of manipulated transactions by manipulating one or more test case transactions resulting from a constraint-satisfaction-problem.
The filing date on this is in 2007. So this company is attempting to claim that they invented constrained random testcase generation just last year!?!?!?!? What a preposterous and audacious attempt to manipulate the system. Now this is not a company that files just a couple of patents a year. These guys are experts, and it is just one example of stupidity that causes the problems in the patent system.
Another patent caught my attention recently for a very different reason. Even more hard facts about this one will be removed as it could progress to legal actions. It is widely known that patent examiners look for significant keywords in an application, and do a search for those keywords to locate prior art. So in one patent, that was basically granted as originally applied for, the applicants substituted all of the significant keywords with alternatives such that the prior art that was found could easily be shown to be different. To someone skilled in the art – as they love to say in patent lingo, they would know that a word substitution game had gone on, but for a poor patent examiner, who cannot be expected to be skilled in the art, he or she hasn’t a clue what is going on.
So before we complain about the state of the patent system, why don’t we stop trying to game the system by silly applications. Inventions deserve to be protected, but we should not attempt to use the system for unfair advantage. Let that be my wish for 2009, that companies should only try and protect what is legally theirs and not try to steal what belongs to other people.
Hi Brian,
With respect to the first example, I understand that many companies defer filing patent applications, sometimes for years, because they don’t want to disclose the underlying technology in the patent application. Could it be that this company just filed in 2007 but actually invented constrained random testing some years earlier? Forgive me if I am off-base but I’m kinda shooting in the dark since you are protecting the sorta innocent
harry
January 2nd, 2009 at 1:47 pmHi Harry. Yes – you are right that the U.S. has a strange concept in that invention date is not the same thing as filing date. So long as an inventor has properly documented an invention and reduced it to practice, then that does become the priority date for the invention. This is not true in any other country, where the application date, takes precedence. Now, I am not a lawyer, so maybe someone can fill in the details for us, but is the length of the patent from the initial filing, or from the date of invention if they are different?
Another thing I am not sure about is that with an application, if the declared prior art would show up. In this particular case, there is none provided and that too raises a red flag for me.
So Harry – it is possible that you have a valid point, but knowing the history of things, I doubt it.
January 2nd, 2009 at 2:18 pmThe company in the first example is IBM
http://www.faqs.org/patents/app/20080319729
January 9th, 2009 at 9:02 pmThis is a direct quote that was sent by the head of research in his ‘welcome to 2009′ email sent to everyone in the division.
“…this year we will track our input (number of invention disclosures) and output (applications filed) in this important aspect of our work.”
You can see why people try to game the system when their performance rating is dependent upon it.
January 12th, 2009 at 7:52 am[...] More … [...]
February 13th, 2009 at 12:37 pmNow I see it better:)
IBM Research people’s performance ratings are likely dependent on their patents. At IBM Research, lawyers write the claims for many patents, and they are trained to write this kind of claims. Many examiners (with only college degrees mostly) respect IBM research people more than other applicants, and their performance ratings are likely dependent on how many patents they finish examining. Therefore, they are often relatively easy on patents from IBM Research.
These patent claims may not really cause any harm. IBM will not really enforce them. Their impact is only to prevent future patents with similar claims. Anybody can ask for re-examination of such patents (probably causing some impact on the examiners’ performance ratings) but people do not do so with IBM patents because they can fight in court if IBM really enforces them, which is very unlikely.
Some other claims of these patents can be good, which was really the inventors’ intent.
June 6th, 2009 at 12:12 am