U.S. patent law and administration has been a horror show from the
beginning. A few years back the Cooper-Hewitt National Museum of Design
in NYC held a lecture by a patent lawyer (a Mr. Saidman?), and I have
encountered info on this from other sources like studying the life of
Bucky Fuller. Overly-broad patents are a real problem. A few examples:
(1.) An early patent was for a design of a spoon, a design which was
nothing innovative, and which was interpreted as locking up a whole
category of silverware style way beyond the design of the spoon as
actually shown on the patent.
(2.) A recent book whose author was interviewed for a half hour by Lenny
Lopate on NYC's public radio station WNYC, detailed how the Wright
Brothers aviation corp. were granted a ridiculously broad patent on
height control (they had drawn a poor method: wing-tips flexing up and
down; but verbally tacked on a phrase like "...or any other method of
achieving height control..." ) by which they then "owned" the later more
successful method which was invented by Curtis. Curtis lacked the money
to go up against the Wrights' lawyers, and was saved by having his legal
expenses to challenge the Wrights' ridiculous patent subsidised by Henry
Ford.
(3.) "Wired" magazine has reported on several overly-broad or otherwise
ridiculous software patents. Starting with IBM being allowed to double
the life of a software patent, by merely changing the name from red to
blue (or was it other way around?) which counted as new enough. And
Bill gates being allowed to initially patent something which was already
in common use ("prior art") and which was invented as a group effort in
many university computer labs.
(4.) Bucky Fuller, having been stopped from building his Dymaxion House
(he sold the patent outright to an aircraft company which then decided
to make small executive planes instead, postwar; and wouldn't sell it
back or license it to anyone else; which is a common corporate practice
which can bury inventions especially in the pharmaceutical field;
sometimes dubbed "orphan patents", a problem of drug companies not even
allowing others to test old drugs not in production, for new
applications) -- became something of a patent enthusiast, and after that
he only licensed his patents.
His next one, the 1951 geodesic dome patent, was on exhibit at the
Patent office for years as a model of a thoroughly documented patent.
It's the first geometry patent, but he slyly withheld key info about the
geometry. The patent examiners failed to notice that Bucky had withheld
a key part of the design information: the math needed to get the dome
struts (in geometry: "chords") to add up to a generally spherical
structure. Nor did they notice that the geodesic geometry concept was
prior art: It had been used in Germany for ferroconcrete reinforcing in
a dome built for the first planetarium, and even appears in ancient
chinese sculpture (see "Shelter" by Lloyd Kahn; "the wonder of Jena"
dome and a second similar one of different geodesic "frequency" in the
1930's are also shown in one of the illustrated dictionaries of
architecture which I saw in 1975 in the Boston Public Library).
Since copies of patents are sold by the patent Office for just a few
dollars, Bucky wanted to make sure you had to go to him for a license,
to get that mathematical info. He had design students all over
reporting rip offs to his lawyers. I think some of this may have been
included in Hugh Kenner's great book "Bucky"; some of these anecdotes I
learned from direct conversation with Kenner and Kahn, too, as I
happened to be visiting Kahn when Kenner came to interview him for a
chapter in the "Bucky" book. (One builder who tried to cheat his way
around getting the patent license from Bucky, ended up using a math
formula for acheiving the curve (discarded, because the printout had
errors in it) which had been stolen out of Bucky's waste basket and
published in a do-it-yourself book, resulting in the collapse of a large
dome frame intended for an ice-skating rink in upstate New York.)
(5.) Of course it's true that applications not granted yet sometimes
get more attention than warranted.
Has the "single click" software patent application, which I read was
intended to lock up any method of accomplishing that function, ever
granted in that form? Have the astonishongly broad "internet business
model patent" applications, been granted?
---
The lawyer lecturing at the Cooper-Hewitt also reported on some new
developments on the practice of strategically withholding info in a
patent.
In general, the more leeway there is due to a poorly written law and
excessively flexible interpretation in the Patent Office and in Courts,
the more it favors whoever has the most lawyers and ability to withstand
adverse judgements (see Microsoft cases of how they "acquire" other
firms' software). Designers and manufacturers who own patents routinely
decline to try to enforce the patents, because they can't afford it and
/ or the laws are to weak (the cabinetmaker Thomas Moser and Brueton
furnitire co., for example). Which may be why we don't get legislative
reform in this area?
A proposal for a cheaper kind of design patent modeled on copyrights (a
bill by Congressman Carlos Moorehead) was defeated in the 80's because
of concern that knockoff auto parts were more affordable to consumers
than authorised parts. It would have at least solved the problem of in
certain cases, not paying a fortune for something that in the end
doesn't work.
My various chance encounters with patent law in my architectural
studies, have led me to conclude that the way they define what's
patentable as "novelty" (a better concept would have been "innovation")
was the beginning of the whole mess. And one cannot help but conclude
after doing this reading, that nobody who had any idea of what "design"
is, was included in the process of writing the law; and I wonder if
anyone administering it has any idea what design is, either.
Some day some bright publisher in the design field will find a patent
examiner who has just retired, and will commission an expose of the
whole increasingly sordid mess.
Jim
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