Fuzzy Patent Fences Make Bad Invention Neighbors: PK’s Comments on Patent Clarity at the USPTO
Fuzzy Patent Fences Make Bad Invention Neighbors: PK’s Comments on Patent Clarity at the USPTO
Fuzzy Patent Fences Make Bad Invention Neighbors: PK’s Comments on Patent Clarity at the USPTO

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    Public Knowledge takes its fight for clear patents to the Patent Office.

    If it’s not clear by now, I really don’t like unclear patents. I have blogged about how Intellectual Ventures applied for a patent on Microsoft’s Clippy, showed the Supreme Court how a 350-word patent claim was merely 16 lines of computer code, and filed a brief arguing that vague patents are impeding innovation.

    Well guess what? I’m at it again, this time helping the U.S. Patent and Trademark Office come up with new ideas to nip unclear patents in the bud. Today, Public Knowledge, with help from EFF, filed comments with the Patent Office suggesting ways that they can improve clarity in patents.

    Let’s start off with a reminder of why vague, ambiguous patents are a problem for you. It’s fairly simple: ambiguous patents don’t tell the public what infringes the patent and what doesn’t, leading technologists to either avoid perfectly legal things or forcing those technologists into difficult and expensive litigation. Since the technologists are avoiding or defending lawsuits, they aren’t spending time creating new and innovative things like the iPhone apps or electronic devices that you love. Thus, ambiguous patents means less innovation, which means less cool stuff for you.

    So how does the Patent Office come into this picture? Although the courts have created the laws that allow for these ambiguous patents to exist, the Patent Office is the first line of defense since it examines all patents before issuing them. That means that, if a patent examiner feels like part of a patent application is unclear, the examiner can take steps to fix the problem, either by asking for a change to the application or by writing something into the record of proceedings, publicly explaining how the unclear part should be understood.

    Thus, the Patent Office is coming up with a new program called its “glossary pilot”: patent applicants can include, with their applications, a glossary of terms, to define what each of them mean. From the public perspective, this is great: patent examiners can ensure that patents are clear, that people understand what words in patents mean, and patent owners can’t take advantage of ambiguities in the patent language to achieve those chilling effects on technology that keep cool stuff out of your hands.

    But it’s the last part that’s the problem. Patent owners and their lawyers stand to profit from the ambiguities in patent language, because they can give one definition to the examiner and another definition to the court. So rather than put a glossary of definitions into the record of proceedings, patent attorneys would rather keep the definitions off the record, by just talking with examiners about the definitions. Doing so helps the applicant get patents faster, but at the cost of the public knowing what the patent really means.

    Our proposed solution: ensure that when definitions of terms are talked about, those definitions are written down and put into the record. This should be as easy as possible for examiners, so we suggested some simple forms for recording these definitions. By recording the definitions into forms, the examiners ensure that the public, the patent applicants, and the examiners are all on the same page as to what the patent means.

    This may all seem like low-level technical patent-speak, but a lot of times the small changes can have useful effects down the road. We hope that our recommendations and many other good ideas will ultimately lead to clearer patents, less fear of complicated and uncertain patent litigation, and ultimately less chilling of the innovation that drives the creation of all the cool stuff we like. And helping to create more cool stuff, I would say, is a pretty useful effect.

    Image credit: U.S. Pat. No. 263,011, Electric Lamp, by A. Bernstein, issued August 22, 1882.