Note to self

This may sound boring but after a slow start it gets better …

In order to get a patent four criteria must be satisfied: the invention must be useful, novel, non-obvious, and must meet what is known as the enablement criterion, meaning that it should have a detailed enough description that anyone working in the appropriate field should be able to make use of it.

The inventive step criteria is (supposed to be) assessed by what the skilled person would have found ‘obvious’ before the patent applications was filed, in the light of the common general knowledge.

When considering who is the skilled person one is supposed to look at to whom the patent specification is directed to and look for the reasonable and uninventive common man in the technical area and ask them, or imagine, what they might think about how obvious the supposed inventions are.

I think I could state with some certainty that this definition of inventiveness was put together by a dysfunctional committee of less than common men that was worried that the pub was about to shut.

In the annals of fuck-up-edness this is right up there.

In any case, the key is to consider who is the ‘one’ do the imagining?

When a patent is being drafted it is the patent attorneys that imagines what a reasonable and uninventive technical operative might consider obvious. Later on it is a patent examiner and if the patent is ever the subject of enforcement, a judge or a jury (in the US).

The ONLY party amongst this lot that may have any credentials to imagine what a reasonable and unimaginative technical operative might think is obvious is a jury member that by some fluke has worked in a technical area.

Judges, patent examiners and patent attorneys have rarely done anything other than law or patent law. They might have some undergraduate technical degree but that will count for nought.

When one is trying to properly imagine the mind of a reasonable and unimaginative technical operative the skills needed are quite remarkable. This mind will be ordered and dull; it will probably have an antithesis to invention; it may be bitter; it certainly will think it understands patents and invention when it does not.

In summary its opinion on the matter of invention will be wrong and therefore the judge or patent examiner should double-guess the bastard and go the other way.

But then patent examiners or judges would need a great big dose of empathy that they usually do not have in order to understand the dull technical operative in the first place. But even if by some fluke they had this empathy, without the experience of working alongside such dull technical operatives, they will never be able to see through the facade to the discontent of these types.

To put it another way, if one was to come up with the worst possible definition of invention this would be it. And in fact it is mostly ignored in practice. Patent attorneys and patent examiners just use precedents and prior art patents to make decisions on inventiveness – which is why there are so many useless patents.

Judges and juries do get to see the dullards giving witness in court from time to time. The problem here is that they rely on the opinion of the worst of the dullards, the ones that are prepared to stand up in court and sprout forth. This is their chance to right wrongs so you can be sure that what they think is not worth knowing.

I always say that its no use whining about something unless you have an alternative.

There are those that really do understand invention and it’s corollary, obviousness, and it is venture capitalists that happen to have a strong technical and entrepreneurial background. Their opinion on inventiveness is accurate so long as they have an appropriate understanding of patent law.

Why is this so? Well you have to remember that patents are all about money. The granting of one should lead to profit for the owner. And the technical and inventive types that are most attuned to profit are the characters that I have described above. This I know and they know true invention when they see it. Comparing these types to corporate technical types you have foot soldiers versus high-end mercenaries.

It would be an interesting study, to take a handful of patent applications and to ask all of the following – – a number of patent attorneys, patent examiners, judges, technical dullards and technically experienced VC’s that are former entrepreneurs – for their opinion on inventiveness using both (a) the current dullard proxy definition and (b) what they really think.

My prediction is as follows:

The dullards will be al over the place – for the same invention some will say its inventive and some will say its obvious. Some will imagine it just from their own point of view and, who knows, some may try to imagine what their peers think. In short the spread in opinions will discredit the dullards as a source of anything. Inaccurate and imprecise.

Similarly judges, even with the help of dullards, will be all over the place simply because they have no experience to help them make sensible decisions, other than their own experience making inexperienced decisions. Inaccurate and imprecise.

On the other hand, patent attorneys and patent examiners will all pretty much agree with each other because they will not really be imagining the mind of the dullard at all. They will take a sneaky look at the prior art in the patent literature in order to make their decisions. Some really clever operatives might even write an algorithm to automate this process. However they will inadvertently allow patents to be granted that are obvious – possibly because this is in the best interests of their livelihoods (more patents equals more employment etc). Inaccurate but precise.

Finally the genius entrepreneur/VC/tech gurus will have a much higher bar for inventiveness than all others if they use their own definition of the inventiveness. Because they are so clever, if they were forced to use the dullard proxy approach they will actually generate appropriately random results. But left to their own devices without the baggage of the imaginary dullard they will be both accurate and precise.