Tuesday, May 22, 2018

Leaving yourself some options...

by Steve Reiss (stevenreiss@scienbizippc.com)

Some boilerplate....

This Will Hurt

When designing an aircraft, projectile firing weapons systems are typically mounted internally in the aircraft....

In some implementations, the gun mount 914 may be configured to couple to one or more weapons. A weapon may include or correspond to a machine gun, a chain gun, a cannon, an auto-cannon, a rail gun, a projectile firing device, or a laser weapon. The one or more weapons may include different types of weapons. For example, the gun mount 914 may be coupled to a machine gun and a rail gun. As another example, the gun mount 914 may be coupled to different types of machine guns.

Monday, May 21, 2018

On USPTO Rejection Rates

by Steve Reiss (stevenreiss@scienbizippc.com)

A 95% rejection rate...and the public having no problem with that?

In nineteen cases out of twenty, probably, the opinion of the Commissioner, accompanied by the information on which his decision is founded, will be acquiesced in. When unsatisfactory, the rights of the applicant will find ample protection in an appeal to a board of examiners, selected for their particular knowledge of the subject-matter of the invention in each case.

John Ruggles, Senate Report Accompanying Senate Bill No. 239, 24th Cong., 1st Sess. (April 28, 1836)
U.S.P. 1 (1836), J. Ruggles.
John Ruggles - Father of the 1836 Patent Act

Sunday, May 20, 2018

American Litigiousness and Patents

by Steve Reiss (stevenreiss@scienbizippc.com)

I bet you thought I was going to name drop the coffee-spill case. If so, you read the title of the post too quickly and missed the "and "Patents." part.

But since you are visiting my blog, I will mention that as an attorney, I did not agree with the general coffee-spill policy of Liebeck v. McDonalds (1994). But, considering the various internal McDonald's memos that were release in discovery, I agree with Professor Turley that this case was "a meaningful and worthy lawsuit."

Well, then, what am I going for?


As a famous patent-economist-historian says:
Every new innovation that mattered in the marketplace brought uncertainties, conflicts, and consequences that were initially processed in state and federal courts, until these issues were resolved through various institutional mechanisms. Such disputes did not only relate to questions of patent rights ...

B. Zorina Khan,"Trolls And Other Patent Inventions:Economic History And The Patent Controversy In The Twenty-First Century", 21 Geo. Mason L. Rev. 825, 838 (2014).

Professor Zorina Khan

Saturday, May 19, 2018

The Integrity Of The Patent Examining Corps Was Subject To Attack

by Steve Reiss (stevenreiss@scienbizippc.com)

I love the scholastic tidbits that the old journals contain...

The Journal of the Patent Office Society (now the Journal of the Patent and Trademark Office Society) is a patent and trademark law journal published by the Patent Office Society, which was founded in 1917 by patent office professionals. In its earliest issues, most of the articles were written by examiners or examiners-in-chief, explaining patent law or procedures.

During this early time, the Office suffered attrition on grounds that it faced before and will continue to face in the future. This problem is the wide discrepancy in pay between private sector patent attorneys/agents and government/public sector patent attorneys/examiners.

Every month, the Journal had a listing of recently resigned examiners that leaving for higher paying jobs in the private sector. The Journal cited these listings to support its opinion that morale at the office was low, examiner pay needed to be raised, and the office needed to be an independent agency so that the Secretary of the Interior (the Office was not yet under the Secretary of Commerce) could not meddle with Patent Office or patent law issues, which the SoI had no real experience. In other words, the Journal was merely publicizing the challenges the Patent Office was facing then- and would continue facing, pretty much forever.


During this time, the Office also suffered attrition from the extraordinary number of resignations due to World War I and the sad fact that many of those examiner's that left to fight the war, died during their war service.

And then, in May, 1920, a strange resignation was noted and had a very strange tone. The Journal reported:

TEXT: Miss Grace MacFarland resigned April 21st and the announcement of her marriage appeared shortly thereafter. It thus appears that the integrity of the corps is subject to attack in a new direction which it will be extremely difficult to guard against. Miss MacFarland, or to be more accurate, the former Miss MacFarland, entered the Office as a temporary Fourth Assistant Examiner August 27, 1918; was made permanent assistant Dec. 1, 1919, and promoted to Third Assistant Examiner Feb. 23, 1920. She served continuously and very acceptably in Div. 43.

2 JOURNAL OF THE PATENT OFFICE SOCIETY 482 (May 1920)(emphasis added).

What the editors of the Journal meant by "the integrity of the corps is subject to attack" by the announcement of Examiner MacFarland's marriage is only subject to guessing. To me, at least, the phrase "Miss MacFarland, or to be more accurate, the former Miss MacFarland" seems snarky and intended, in combination with statement that the corps being "subject to attack," to be a jab at women examiners, who in the editor's view, were likely to resign the positions and become stay at home moms after marriage, taking their patent experience home with them. This is the 1902's after-all.

My guess as to what the editors of the Journal meant is not based on me having any particular bias in favor of diversity political correctness, nor an over-sensitivity to so-called "social justice" issues.

But, when you are reading what is supposedly an objective and respected legal journal, and read a statement like this, in the journal section entitled "OF GENERAL AND PERSONAL INTEREST", the snarky tone just hits me in the head and make me go "hmm."

Finally, having read dozens of these resignation statements from 1919-1920, they typically tend to either not editorialize on the resigning examiner's performance while at the office or take a highly positively tone. For example, in the very same the issue discussing Grace's marriage and virtually just below her announcement, the Journal says:

 Mr. B. J. Craig, 2nd assistant examiner, has resigned to go with Bates & Macklin, patent attorneys... He served in Divs. 40 and 44, always doing exceptionally good work.

Mr. Elmer J. Gray, a temporary 4th Assistant Examiner, has resigned to enter the office of Mr. C. A. Weed, patent attorney, of New York City. While Mr. Gray has been m the corps only since Sept. 29, 1919, he has developed marked aptitude for the work and his departure is a real loss to the Office.
Therefore, the Journal's "compliment" to Miss MacFarland that she performed "very acceptably" at the office is not consistent with the editor's typical tone.

During this era, there was only one other time that the Journal pointed out a marriage in the corps. In the June, 1920 issue, the editors said:

Here, the editors are clearly trying to make a patent joke, with the listing's reference to good combinations and not aggregations. See MPEP 2173.05(k) ("Aggregation").

What do you think? Am I just reading too much into this?

Sunday, May 13, 2018

Crank Inventors? A Light-Hearted Discussion

by Steve Reiss (stevenreiss@scienbizippc.com)

In 1922, there was an article in the then-fairly new Journal Patent Office Society referring to "crank inventors." What could this article, written by a former patent examiner, actually have been referring to?


Historical Lead Crankshaft Inventors (Patent Volume Total), By Inventor)(1999-2018)
Lrsd Crankshaft Inventors (Patent Volume 2011-2015)

Patent Applications By Application Year For Crankshafts (1999-2018)



No matter how many crank inventors there are, it cannot be denied that the civilization of a people today can be measured by the inventions that are made by that people. The wealth of the community can be more directly traced to the inventor who multiplies the labor that can be performed by the laborer than to the laborer himself, and whatever policy discourages or destroys the inventor will result disastrously to the community, whether that policy be Bolshevism or unwise tax laws. 

F. O. RICHEY (Former Assistant Examiner), THE INVENTOR AND THE EXCESS PROFITS LAW, 2 J. Pat. Off. Society 593-599 (1922)(emphasis added).

Patent Data/Graphs provided by Patentcloud.com. 

Monday, April 23, 2018

A Patent Office "Educational Bureau" with Field Agents?

by Steve Reiss (stevenreiss@scienbizippc.com)
If we as individuals and as a nation are to be industrially and economically prepared and efficient to meet the necessities of war as well as to compete for industrial supremacy in times of peace, it is essential that our condition of industrial progress and preparedness be based upon certain and secure foundations.
James Lightfoot (US patent examiner), "A Proposed Department of Invention and Discovery", 1 J. Patent Office Society 116, 116 (1918).

The following are excerpts from Lightfoot's article's proposals on how to reorganize the Patent Office. Lightfoot suggests the creation of several bureaus within an independent Patent Office, including:

  • An Executive Bureau
  • Bureau of Information and Education
  • Bureau of Patents and Publications
  • Bureau or Division of Utility
  • Bureau of Validity Examinations; and
  • Bureau of Priority of Inventions
Page 124-130.
The most interesting of these Bureaus is the Bureau of Information and Education. Lightfoot describes it as follows:

This bureau should be equipped with men and full facilities for promoting the dissemination of knowledge of the true meaning and provisions of the Patent System.

Specially is this essential because in its most fundamental sense the Patent System is an industrial educational system and it constitutes one of our most glaring national errors that the public in whose interests the Patent System was established has been kept in ignorance of its true. meaning and intent.

This Educational Bureau should be charged with the duty of establishing a system to instruct the inventing public as to how to prepare to make inventions, how to invent in the interest of the public, and with profit to themselves, what, to invent, how to avoid losses through abandonment or want of knowledge as to how to proceed after conception or reduction to practice to avoid complications, how to obtain patents of value, how to study the prior arts before inventing, how to select competent attorneys, in fact everything connected with making and patenting and marketing inventions just as the Department of Agriculture has, through bulletins, publications and field agents, instructed the farmer in all respects how to prepare to produce crops, how to produce them, how to protect and conserve them when produced and how to market them in the most efficient way.
The incalculable values in time, money and energy that have been wasted in inventing useless things, in reinventing things that have been shown to be old, and the great values in inventions lost to the nation because the inventors have not known how properly to develop them to material form and how to have them properly disclosed and protected in letters patent, clearly indicate the great need of educational work along these lines.
The workmen in the shops and factories, in the laboratories and on the farms know little if anything of their rights or responsibilities in relation to invention, and manufacturers and their employees know little in relation to the same.
This condition has resulted in the grant of many patents to employers for inventions made by employees and has resulted in granting some patents to employees that have been made by employers, all of which patents being thus rendered invalid, have produced complex business conditions.

If it be true, as has been stated, that unscrupulous industrial institutions have pirated inventions in various stages of their development and that an enemy propaganda has been extended even to pirating inventions in the making and before being patented, it is clear that inventors should be taught to protect their inventions in the making and when completed from these enemies and from others who would pirate them.
And if the spirit of inventions is to be encouraged, fostered and promoted in the national interests, it is quite obvious that this Educational Bureau should seek to promote the instruction and study in our educational institutions of the philosophy of invention and the true meaning and importance of the Patent System. And if the spirit of inventions is to be encouraged, fostered and promoted in the national interests, it is quite obvious that this Educational Bureau should seek to promote the instruction and study in our educational institutions of the philosophy of invention and the true meaning and importance of the Patent System.

Included in this Educational Bureau may be a corps of Patent Field Agents- just as there are Agricultural, Land and Pension Field Agents, who hi cooperation with inventors, attorneys, manufacturers and capitalists, should seek to aid, in every possible way, the interests of inventors and manufacturers, because in this way the public interests will best be subserved.
The Division of Information of this bureau should be a well organized institution of well qualified experts who should furnish full and accurate information to solicitors, inventors and industrial institutions, as to fields of validity search, and as to all matters in, relation to procedure and practices involved in the activities of the department.
 Pages 124-126.

Examiner Lightfoot's proposals were reported to the engineering and technical public in a "Special Correspondence", in American Machinist.magazine, entitled "Proposed Increased Efficiency in Patent Office", 50 American Machinist 1044-45 (1919). The magazine expressed no opinion on Lightfoot's proposal.

Sunday, April 22, 2018