Let’s Play the Patent Legislation Card game
By Albert Onestone
Here are the Rules of the Game that H.R.1908 newly passed- through Congress, and is in process as S.1145 in the Senate. The object of this missive to let our friends in the Senate understand what the RULES MEAN and what MEAN RULES THEY ARE!.
Rule 1 First person who races to the patent office and brings a patent or alleged patent application to the USPTO – gets priority on obtaining the patent – even if he/she is NOT the original inventor as defined in the U.S. Constitution and even IF the patent is “premature” and faulty and perhaps NOT the same as it is purported to be. Because no one will know for sure for YEARS!
Rule 2 ALL patent applications filed in America will be subject to MANDATORY publishing on the Internet for all the world to see, copy, steal if they so desire. And why wouldn’t they desire to snatch a totally unprotected patent when they can -- if it is superior to what they might have been working on or “thinking about” or desiring – or NEED?
Rule 3 H.R.1908/S1145 has INVENTED a new kind of card game tentatively called “PAT APP POKER.” It’s Subtitle is “One against Six Billion” -- where ALL American Patent Applications are LAID OUT ON THE TABLE AND THE INTERNET -- FACE UP so that they can be vetted as in Rule 2. But BEYOND that – they can be used to ENHANCE the cards of all the other players on the table around the world.
Now here’s the part that makes the game so exciting -- we have no way of seeing or knowing or becoming aware of WHICH of Earth’s SIX BILLION INHABITANTS, in China or elsewhere, are able to LOOK, during the YEARS that these Applications are EXPOSED AND UNPROTECTED. And not only can ALL of the other players SEE ALL the cards – BUT they are able to “BORROW,” without recompense, THE CONTENTS OF ANY OR ALL OF THE CARDS FOR THEIR OWN USE – UNTIL – AND UNLESS, A PATENT MIGHT FINALLY, ISSUE SOME YEARS LATER. Of course – this means that “TAKERS” -- anyone in the world, anywhere in the world – will have had time to COPY, OPPOSE, SUPERSEDE, SURPASS, DEVELOP AND OSOLETE THE AMERICAN PATENT APPLICATION BEFORE IT CAN ISSUE AND BEFORE IT CAN PROTECT THE ORIGINAL INVENTION AND INVENTOR – OR AMERICA!
Rule 4 The “BEST MODE” requirement that has been part of our patent system for Decades if not Centuries – is herewith eliminated. Now THIS seems to be contrary to Article 1, Section 8, Paragraph 8 of the American Constitution which states –“Congress shall have the power to promote the progress of science and useful arts by securing for LIMITED TIMES the EXCLUSIVE right for writers and Inventors of their respective writings and discoveries.”
The DEAL between the Patent Office, representing America – and the Inventor – is that When and IF he/she discloses his/her invention – it will be protected and kept SECRET by the United States Patent Office UNTIL the time a Patent issues. Then, IFa Patent Issues, it will be published so at to provide TEACHINGS to American (then) and the world (NOW) so as to enhance and promote FURTHER inventions for those skilled in the art but who did NOT produce these inventions. And – up ‘til this “clever” legislation – if it does NOT issue – it is NOT published and may remain a trade secret or permit an improved patent application to be created. To Quote Ralph Waldo Emerson – “Invention Breeds Invention” and to quote myself, thanks to Mr. Emerson – Patents TEACH how to produce MORE and BETTER patents.
NOT teaching the Best Mode – is CHEATING on the deal with America. And THIS is a part of Senate Bill S.1145 as it was of the recently passed Congressional Bill H.R.1908. CHEATING America IS one of the unstated PURPOSES of this legislation.
Rule 5 Never give a sucker (new alias for Inventor) an even break. Do NOT allow VENUE PICKING! Stick it to the Plaintiff inventor by forcing the use of the courts – preferably in the Infringers HOME TURF. It must be fair because Microsoft would be willing to have the juries come from local Redmond or other close localities in Washington State. Needless to say the jurors, who might have relatives working at Microsoft, would CERTAINLY WORK HARD TO BE FAIR AND OBJECTIVE. Sure they would!!!
Rule 6 Willful Infringement clause – will willfully weaken or will it to death. Make it REALLY, REALLY DIFFICULT to prove Willful Infringement, which could cause a tripling of the award against proven infringers. Infringers LOVE this one.
You’ll find in the patent literature and on the patent blogs, that many Corporate Patent Lawyers tell ther engineers that they SHOULD NOT LOOK AT PATENTS RELATED TO THEIR PROJECTS FOR FEAR THEY MIGHT LEARN SOMETHING AND BE SUBJECT TO PENALTIES FOR WILLFUL INFRINGEMENT (another word for THEFT)! I am NOT making this up. When I asked some of the lawyers that I WOULD NEVER USE, what they thought of this – they would tell me that IF the engineer could SWEAR that he had Never Seen anything like it before he did it all by his little lonesome – the company would be spared the Willful Infringement penalty. Ok – I’m NOT a lawyer though I have worked with and hired HUNDREDS of them, some great, some good and some I’d rather forget about – BUT – NOT ONE OF THEM HAS EVER SUGGESTED SOMETHING AS STUPID AS THAT TO ME. NEVER! Whatever happened to “Ignorance of the law is no excuse?”
The PURPOSE of the American Patent System – is to TEACH and from Teaching to educate, illustrate, illuminate and provide the bricks and mortar to build ever better and higher concepts and inventions. Our patents are and were meant to be the rich, fertile soil that nurtures and encourages the growth of better and stronger products than those that grew before them.
When the old patent office in Crystal City existed – I would often work my way though the “shoes” (the boxes that held patents in each category) and by so doing would form exciting insights and improvement to the inventions I was working on and researching. “Invention Breeds Invention” as Patents Beget Patents. Now with the instantaneous ease of internet searching. I can not imagine any excuse NOT to know what patents are “out there.” One might, by finding them – REALLY create a superior improvement or alternative to what currently exists. To avoid researching is a frivolous act of FOOLISHNESS and SHOULD well be admonished, if not punished. And it SHOULD NOT be excused in legislation.
Finished the RANT now and breathing deeply.
Albert
