Posts Tagged ‘utility’

You Can’t Patent Walking Through Walls

Sunday, 28 August, 2011 23:48 Written by Danie Roy 2 Comments

Danie Roy

If you know anything at all about patent law, you absolutely have to know the three requirements for patentability: the invention must be novel, non-obvious, and useful. That’s why, if you ever have or ever will study for the patent bar, 35 U.S.C. §§ 102, 103, and 101 are drilled in to your head, respectively.

The requirements are pretty straightforward, once you understand what they mean. Novelty is pretty obvious: is it new and different from everything else out there? Non-obvious is slightly more fuzzy: would someone of ordinary skill in the field of the invention have come up with the idea of putting the invention together on his or her own? Useful is pretty much what it sounds like, too: does it have a specific and substantial credible (legal) utility?

I know, I know, we're getting to the good stuff, I promise.

The requirements of §101 (also found in MPEP §2107), is why a lot of things cannot be patented: perpetual motion machines, resurrection burial tombs, and walking through walls.  There is no credible utility for any of them. They all defy the laws of physics and science as we know them. That doesn’t mean some people won’t try.

First up: the perpetual motion machine, U.S. Published Patent Application No. 2007/0246939. It’s not much to look at, mostly rough drawings of a machine that the applicant claims can run forever. The application was abandoned in 2008 for failure to respond to an Office Action, in which the Examiner predictably cited §101 – invention is inoperative and therefore lacking utility. The examiner then proceeded to point out that the claimed invention violated the laws of physics.

Next, we have the resurrection burial tomb, U.S. Published Patent Application No. 2005/0027316. This one has a four-page long first claim (which I couldn’t follow), but I gather that the method borders on what Dr. Frankenstein used in creating his monster. The application was abandoned for failure to respond to an Office Action/failure to pay filing fee for Appeal. For this particular application, I believe I saw six different rejections, among them, §101/§112: no credible utility/failure to enable use of the invention. Most amusing part? The application claims priority from or is a continuation/continuation-in-part of 13 different applications, all expired or abandoned except one: a microwave hot water boiler heating system. How we got from heaters to resurrection, I’m definitely not sure.

Finally, the walking through walls training system and method, U.S. Published Patent Application No. 2006/0014125. I think the most interesting part of this one is the use of algorithms for storing hyperspace energy. They make up most of the application, really. This application was also abandoned in 2008 for failure to respond to an Office Action. I have to hand it to this Examiner: the claims were rejected on three separate grounds. Rejection 1: 35 U.S.C. §101 and §112 first paragraph: no credible utility and defies the laws of physics/unable to use invention as disclosed. Rejection 2: 35 U.S.C. §112 second paragraph: failure to point out and distinctly claim what the applicant regards as his/her invention (wasn’t specific). And, my favorite, Rejection 3: 35 U.S.C. §103: OBVIOUS.

Okay, to clarify, the training system was rendered obvious in light of a dancing training system. Both systems used printed banners to show where to step next. But, still, I let out a little bit of a guffaw when I read that.

The lesson to be learned here? If your invention stands to redefine life (or death) and/or the laws of physics as we know it, ask a registered attorney or agent first. If you can’t prove your invention works or that those laws are wrong, the registered practitioner can save you a lot of time (and money).

Urban Legends – Poor Man’s Patent

Thursday, 24 March, 2011 10:13 Written by Scott Nyman 4 Comments

By Scott Nyman

Recently, I had a potential client ask me how to acquire a “poor man’s patent.” The poor man’s patent is an urban legend, a myth, and and provides protection on par with its required investment. The theory behind the “poor man’s patent” is similar to that of the fabled “poor man’s copyright,” you place a document containing the intellectual property you want protected in an envelope and mail it to yourself. Sophisticated versions of this myth require that you use U.S. certified mail when “protecting your invention.” Seriously, I’m not making this up.

Had I been able to practice patent law by simply mailing documents to myself for people, via U.S.  certified mail to be safe, I could have skipped spending most of my twenties in school and accumulating a substantial amount of student loan debt.

Here is what the U.S. Copyright Office has to say on the related “poor man’s copyright.”

I’ve heard about a “poor man’s copyright.” What is it?

The practice of sending a copy of your own work to yourself is sometimes called a “poor man’s copyright.” There is no provision in the copyright law regarding any such type of protection, and it is not a substitute for registration.

To prove that this myth is circulating, I found this eHow article, authored by “wineglass,” outlining the steps to acquire your own “poor man’s patent.” The original article can be found here. The following has been copied from the article*:

How to get a poor man’s patent and also how to get a better patent for cheap.

Difficulty: Moderately Easy

Things you’ll need: postcard, money, computer, product

1. First of all a poor man’s patent is simply, just a postcard you send through the United Postal Service. Just print a copy of the product you designed on it. Address the postcard to your self (sic). Once it comes back stamped by the postal service it is a “Poor Man’s Patent. Risk is the design going out, and maybe not returning. But it is the cheapest way.

2. A better way to get a patent is to go to Lulu.com. Download a picture of your product. Then make a calendar, T-shirt, coffee mug whatever they offer. You design what it is you want and printed on it copyrighted by your name and date. You pay for it. Then Lulu.com sends your design on the product you chose, this is a legitimate patent plus it is copyrighted and no one else can steal it. We spent $40.00 on ours. I am going back to school for Small Business Management. Then we will go public with our product.

3. It is fun and exciting that if it goes big with the economy, you can actually own your own business. Good luck in you adventures.

So then, what does a “poor man’s patent” get you? Besides a zero return on the spent postage, in theory it may provide you with a date stamp showing the date it passed through the U.S. Post Office. Unfortunately for people who buy into this myth, this does NOT equal a priority date for a patent. In fact, there is no patent!

If you’re looking to build evidence for proving a date of invention, in case the validity of your patent is ever challenged, keep good records of the invention process. Save emails regarding the design or invention process, keep engineering notebooks, and maintain records for parts or labor purchased relating to the design phase of your invention. Then, if someone claims they invented your patented product or method first, you will be well prepared to defend your patent. But, you first need a patent that could be challenged! And no, a date stamped postcard won’t do.

Furthermore, if the Patent Reform Act of 2011 passes, also known as the America Invents Act of 2011, first-to-invent won’t matter anyway. So make sure you pick a postcard with a pretty image, so you can salvage it as a refrigerator decoration if the Act passes, or even if it doesn’t. See my coverage of the Patent Reform Act of 2011 here and here.

So what should an inventor on a budget do if he or she wants to patent an invention, but doesn’t have the funds to take a five-figure risk on an invention that may not be marketable?

First, I suggest that you contact a patent attorney such as myself (Nyman@LegalTeamUSA.com), one of the other patent attorneys at Zies Widerman & Malek, or any other competent patent attorney. It is important that you find an attorney that you like and that can understand your invention.

Second, consider filing a provisional patent application. Although this route will not provide you any immediate patent protection, it will provide you with a “patent pending” status and one year of priority to convert your provisional application into a non-provisional application, which will be examined by the U.S. Patent and Trademark Office for patentability. With the provisional application filed, you can test to see if your invention will be marketable. If so, you may wish to convert your application right away. If not, then at least you’re not losing a big investment.

Just remember folks, not everything you read on the internet is true. Question the source of the information you receive. Heck, maybe I should write an eHow article on this…

* Tactical IP claims no rights to the copyrighted work located on eHow.com. The portion of the work provided herein has been included under fair use. All rights claimed by the original author, eHow.com, or any parent entity thereof, shall be retained by the same. Read more: How to get a Poor Man’s Patent | eHow.com http://www.ehow.com/how_5358538_poor-mans-patent.html#ixzz1HWSlHYAh

CHA – CHING! USPTO TO CASH IN ON PRIORATIZED TRACK.

Tuesday, 22 February, 2011 18:44 Written by danieldavidson 1 Comment

By Daniel Davidson

The USPTO has been looking to implement an innovative system to remove a few logs from the dam that is backlogging the Patent Office.  What has been proposed is a three track program that would allow applicants to choose how fast or slow they would like to push their ideas through the sludge that has become the patent process.  If you would like to recap what the three track system has to offer, see Mark Malek’s post here.  They have been proposing this system for some time now (I just found a memo I did to Mark Malek in June of 2010 on the subject), and now the wait is over.  Of the three tracks, Track 1 (the prioritized track) is being immediately implemented by the USPTO.

The USPTO won't need a cake anymore

Through much discussion, the USPTO has decided that for $4,000.00 (or for some, a kidney) you can be standing at the front of that hot night club that everyone wants to be seen in.  The Club 57 I speak of is actually the patent examining office.  This cold, hard cash will not be rolled up and, well I won’t go there, but it will be your ticket to a final disposition of your application within twelve months.  A great turn around from the years we have seen so many that have written on this topic write of.  The $4,000.00 is the apparent amount that will cover all costs to examine applications on this track.  It would be nice to see an aggregate of these calculations.

Do beware though, patent applicants.  The USPTO will smack your hand and hang you dry if you decide you are going to delay their cranked Orange Blossom Special.  They will kick you off that train and keep your money (or kidney) if you ask for an extension to respond to an Office Action.

I think it is great that the USPTO has decided to be proactive in this growing problem and make attempts to resolve the boom of applications.  I do have a concern though that they are implementing one Track of a plan that has been forever referred to as a “Three Track Program.”  If it has three tracks, I would imagine that they are supposed to complement each other.  Instead, we could see a slower turnaround in the normal application process because of the silver spoon applications.  Nonetheless, I don’t have $4,000.00 (and nobody wants these kidneys) or an invention, so not to much of a worry to me yet.  Cheers.

Microsoft Patents “Liking”

Monday, 10 January, 2011 01:18 Written by Aaron Thalwitzer 1 Comment

by Aaron Thalwitzer

All your patent are belong to us.

In a filing made public on January 6, 2011, Microsoft is seeking a patent for something it calls “One-Way Public Relationships” in social networks and other online properties.

That’s a slightly-depressing way of saying that Microsoft is trying to patent “liking” or becoming a “fan” of something online, probably on Facebook. Seriously, the name ‘One-Way Public Relationships’ sounds like a patent for ‘Total Stalker Dude’.  And, on a side-note, doesn’t Microsoft have a sizable investment in Facebook?

The best part of the abstract tells the story of a humble man named Steve, who happens to be a U2 fan, and wants us all to know about it:

When Steve clicks on the “Add” button, a relation module operates to establish a social networking relationship between Steve and “U2″. In at least some embodiments, the control is operable by a single-click to establish a one-way public relationship between Steve and “U2″. For instance, a one-way public relationship may be established using accounts with the service provider corresponding to Steve and/or “U2″. Based on this relationship, Steve may be able to post on “U2′s” profile page, and obtain content and/or status updates related to “U2″ based on the one-way public relationship. The one-way public relationship may also be employed by the service provider to serve content and/or ads related to “U2″ to Steve’s account across various services. The one-way public relationship may further be employed by the service provider to push status updates for “U2″ to Steve’s account. A mutual friend relationship is not established between Steve and “U2″ in this instance. Accordingly, “U2″ is not provided reciprocal access to Steve’s social network and related information and is not added to Steve’s contacts.

Alas, the stalker patent doesn’t force U2 to reciprocate Steve’s love, and Microsoft will face an uphill climb in its quest for this patent.

What I’m really waiting for is a patent on ‘One-Way Public Malice’ in social networks and other online properties, lawyer-speak for what’s more commonly known as ‘hating’ something online. Actually, that’s not a bad idea . . . and I do know some good patent attorneys.

An overview of U.S. patent protection

Thursday, 15 October, 2009 16:23 Written by Mark Malek 1 Comment

Below is the first in our series of "IP Overview" documents, which are designed to provide a capsule description of the various flavors of intellectual property protection.  If you are new to IP, and you want to know more, we’re hoping that these posts will provide all of the information that you might need to get started.  Enjoy, and sound off in the comments if there’s a question you have about this subject that was not answered here.

Gravatar Iconby Mark Malek

A patent is an exclusive right granted to an inventor by the United States government to exclude others from making, using, selling, or offering to sell the invention that is the subject matter of the patent.  These rights are provided to the inventor in exchange for a full disclosure of the invention, which is published as public record for others in the field to learn from and hopefully improve upon.  This exchange of rights for information aims at promoting the progress of science by trying to remove the natural tendency to keep innovations a secret for competitive advantage.

The protection in a patent lies in the claims.  If one were to compare a patent to real estate, the claims of a patent are comparable to the property description of the deed.  In other words, the claims define the scope and breadth of the patent.  In the ideal scenario, the patent claims will carve out protection that is valuable to the inventor, i.e., define the invention in such a way that it is difficult to design around the protection granted in the patent.

Read more...

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