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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 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.

inetknght 2y ago
> 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.
freejazz 2y ago
> 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.
- querk44 2y ago
  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.
  - freejazz 2y ago
    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.
- kiba 2y ago
  It's just a way to get a seat at the negotiation table. If they sue you, you could potentially countersue them for patent infringement. Yes, it's all a bunch of bullshit, but that is what you get when you have a flawed notion of how inventing works.
  - 2y ago
dahart 2y ago
> 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.
- DowagerDave 2y ago
  >> 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.
  - tightbookkeeper 2y ago
    - 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
    - ajb 2y ago
      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.
mandibles 2y ago
No matter the situation, in America the lawyers always win.
analog31 2y ago
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.
- rostigerpudel 2y ago
  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.
jalapenos 2y ago
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.

inetknght 2y ago

> 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.

freejazz 2y ago

> 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.

querk44 2y ago
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.
- freejazz 2y ago
  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.
kiba 2y ago
It's just a way to get a seat at the negotiation table. If they sue you, you could potentially countersue them for patent infringement. Yes, it's all a bunch of bullshit, but that is what you get when you have a flawed notion of how inventing works.
- 2y ago

dahart 2y ago

> 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.

DowagerDave 2y ago
>> 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.
- tightbookkeeper 2y ago
  - 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
  - ajb 2y ago
    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.

mandibles 2y ago

No matter the situation, in America the lawyers always win.

analog31 2y ago

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.

rostigerpudel 2y ago
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.

jalapenos 2y ago

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.