This article is a parody on the challenges which plague inventors, lawyers and lay people about inventions, as well as a parody on law, engineering, learned articles, footnotes, and hypertext4 to name a few. No representation is made that the content is politically correct, although it may contain useful information. Previously a presentation (sans footnotes) on this topic was made by the author many years ago (before any P.C.s 5) to a very boring conference on intellectual property sponsored by the Professional Communications Society of the Institute of Electrical and Electronics Engineers, and a version of this article has been published in LawWorks Magazine, now called Intellectual Property Today to rave oral reviews matching anything found on the local movie listings. All statements made herein of personal knowledge are true and all statements made on information and belief are believed to be true. 6
The Ten Commandments11 of Invention Disclosure
1. Ignore the Law and the Advice of Your
Patent laws and copyright laws may be safely ignored.12 The Internet is after all the Wild West all over again. It is not necessary to seek legal advice. It will simply cost money. Lawyers are merely hired guns; they do whatever they are told to do to promote their client's interest. Each inventor knows what is right and fair and legal as well as anyone else.
2. Neglect New Developments.
There are no patentable inventions,13 because everything is old and obvious. Moreover, the obviousness standard is easy and so subjective under the law that any patent can be defeated. So do not bother to think about inventions or to follow new developments.14 After all, if it was Not Invented Here, it has not been invented.15
3. Never Show or Explain Work.
If no one knows what has been done, or if no one can understand it, whatever is done is safe. Of course, if someone else invents independently, there will be no problem proving who was the first inventor. Suppression and concealment are of no concern in considering rights to an invention.16
4. Never Write Anything Down.
Inventors, engineers and scientists have a great reputation for writing but are generally too busy on more important matters to communicate in written form. Busy-ness is an acceptable substitute for thought, accurate record keeping and careful writing. Writings never become valuable documentation of valuable inventions. To assure appropriately deficient record keeping, never keep a laboratory notebook, never date engineering drawings, never have notebooks or drawings witnessed, never draw a complete diagram, never write a paper for publication, and most of all, if something useful is written, be sure to throw out all written copies, never make a backup, erase all computer files and delete the directory.17
5. Take All the Credit.
Patents are never invalidated by failure to follow the technical rules of inventorship. Therefore, disregard the contributions of co-workers, never supervise the technician, conveniently forget the valuable suggestion made in confidence by someone else, especially outside of the company, and then proclaim sole inventorship. An inventor can never be accused of practicing law without a license.18
6. Disregard the Audience.
An audience will be limited to those who thoroughly understand inner thoughts and jargon. In a large research and development concern, the audience is, for example, an engineering supervisor, a patent committee, in-house patent counsel, and outside patent counsel, a patent examiner and perhaps even a judge and jury. Having from zero to ten years of education after college, the audience will readily appreciate the significance of transcendental matrix equations in nonlinear dynamic applications. Therefore, carefully neglect to give your audience the information needed to make a decision at its level. In particular, never try to explain technical details or explain the background of an
invention to your patent counsel. He is a mere scrivener.19 Above all, do not bother with descriptions of the environment in which the invention is used or drawings or diagrams showing the best way to make or use the invention.
7. Force the Patent Attorney to Work.
Patent attorneys should be expected to understand everything they are told, recognize its significance, remember it, and compare it with the state of the art, which they will know perfectly.20 Never mind that normal human beings can recall only twenty-five percent of what they hear, have an attention span of about five seconds and do not spend much time studying the prior art to any invention.21 However, since patent attorneys choose their career path because they cannot succeed in science, engineering or general law practice, it is necessary to make them earn their keep by forcing them to investigate the invention. Make them search all the literature. At $200 to $550 per person-hour for the searcher and $150 per hour for on-line database services,22 it is quite affordable.
8. Always Publish or Sell an Invention Before
Filing a Patent Application.
Each country in the world has a novelty or "newness" law.23 Section 2 of The Patent Law of Germany is illustrative. It states clearly:
Eine Erfindung gilt als neu, wenn sie nicht zum Stand der Technik gehört. Der Stand der Technik umfasst alle Kenntnisse, die vor dem für den Zeitrang der Anmeldung massgeblichen Tag durch schriftliche oder mündliche Beschreibung, durch Benützung oder in sonstiger Weise der öffentlichkeit zugänglich gemacht worden sind.24
In Great Britain the law is similarly clear:
(1) An invention shall be taken to be new if it does not form part of the state of the art.
(2) The state of the art in the case of an invention shall be taken to comprise all matter (whether a product, process, information about either, or anything else) which has at any time before the priority date of that invention been made available to the public (whether in the United Kingdom or elsewhere) by written or oral description, by use or in any other way.
These substantially identical rules apply to most European countries, regionally under the European Patent Convention and to many other countries, including Japan.25 Publication anywhere in the world or use in Japan before the priority date or (effective filing date) is an absolute bar to patentability.26
By contrast, the U.S. law provides at 35 U.S.C.
A person shall be entitled to a patent unless-
. . . .
(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States.27
Given the state28 of the law, which will undoubtedly change,29 even though a patent application need not be on file in the United States until a year after its publication, public use or offer for sale, to assure that the invention is never granted a valid patent, send out salesman as early as possible, send in journal articles, deliver at least a million beta samples30 and publish thousands of brochures before filing a patent application.31 Early publication is always for the good of science.32
9. Utilize Obfuscatory Language, i.e., Never
Use Words of Two Syllables Where Words Of Four Syllables Will Do.
A wise rabbi33 has taught us this:
10. Do Everything at the Last Moment.
Most people do their best work under the threat of a deadline. Work is more likely to be well formulated, elegantly expressed and free of error. Lawyers especially work well in the face of important deadlines. They are more likely to find their clients available to them, their work load light and their administrative assistants free to do the jobs assigned to them.36 So save everything to the last moment and expect instantaneous response. Which is to say, never tell a line before its time.37
The lack of bibliography requires neither apology nor explanation.
Since 1975, the author has been a lawyer in the Palo Alto, California, office of Townsend and Townsend and Crew, where he is a partner and specialist in high technology patent prosecution. He holds a Bachelor of Science degree in Electrical Engineering from Brigham Young University (1971), a Master of Science degree in Electrical Engineering from The Massachusetts Institute of Technology (1972), a Juris Doctor degree from The Northeastern University School of Law (1975), and he studied patent law at Harvard Law School. He also studied welding at Foothill Junior College, allowing him to nearly destroy a vintage Porsche during its four-year restoration. He has lectured on intellectual property law at the Stanford Graduate School of Business, at Santa Clara University Law School, at The Chinese University of Hong Kong, at The World Intellectual Property and Trade Forum in Tokyo and in Mrs. Borgstedt's fourth grade class in Palo Alto. He is also a co-inventor of a keyboardless computer. As a microhistory researcher, he helped translate texts from original sources and wrote a book on the descendents of his 13th century Swiss-German family. He produces sports videos, and videos of concerts, lectures, plays and documentaries for cable television, including his weekly cable television show, Ken Allen Presents, and he has been a television pitch man. He has been an instructor in Emergency Preparedness and is the Assistant Emergency Communications Coordinator of the Amateur Radio Relay League for the City of Palo Alto. He has advised the Palo Alto School District on emergency preparedness and communications and since 1995 has served on the Board of Directors and corporate secretary of Cable Co-op, an innovative but underfunded member-owned cable television/cable modem company, which in 2000 sold its assets to AT&T for $90 Million. He is the husband of an extraordinary wife and the father of four remarkable children, all of whom generally ignore his advice.
1. To avoid unnecessary digressions, the first reading of the document should avoid footnotes.
2. Under the Berne Convention on Copyrights, of which the U.S. has been a signatory since 1988, formal notice of copyright is optional (17 U.S.C. 401-405), which could lead to great confusion as to copyright status. Federal Copyright Law preempts all equivalent state forms of protection. 17 U.S.C. 301. Assume all "original works of authorship fixed in any tangible medium of expression, now or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device," are copyrighted. 17 U.S.C. 102. Under U.S. law, a copyright remains vested in the author unless transferred by a written instrument. 17 U.S.C. 204.
3. See Biography.
4. A more generalized and less primitive form of the footnote is the interactive hypertext pointer, a computer-aided cross reference feature particularly popular in cyberspace. Like hypertext pointers, footnotes may provide a range of really useful information, definitions, and cross-references, or really useless trivia, as will be demonstrated. Hypertext pointers can also lead to the state of being lost in cyberspace, as one wanders in informational circles. Footnotes can also do this also. For example, see "web browser," below.
5. Personal computers and political correctness.
6. Phrase found in declarations in lieu of oaths as a preface to the Federal Perjury Statute. See 37 C.F.R. 1.68, 35 U.S.C. 25, 18 U.S.C. 1001.
7. A web site is a virtual location in the cyberspace of the Internet loosely referring to a host computer.
8. A web browser is a computer program used to connect a client user with multiple host computers, often simultaneously, to allow interactive and graphical exploration of the information stored on the hosts. See "hypertext," above.
9. From January 1, 1995 to May 1, 1995 it rained nearly continuously in Silicon Valley, flooding populated areas and large areas of farmland not yet turned over to industry. Then came the snow in late March, an unheard of occurrence. With no major fires for sixty years, the surrounding foothills, now populated with hundreds of thousands of people, are covered with vegetation ripe for ignition. And then there are the earthquake faults that ring the Valley, the San Andreas Fault and the Hayward Fault, which have not had a major displacement since at least 1906. The 1989 earthquake moved a mere few inches-in the wrong direction. The amount of accumulated tectonic displacement exceeds ten feet. See N.T. Matthew Chapter 24.
10. It is important to understand (seriously) that the U.S. and most foreign countries have patent systems to encourage disclosure of certain classes of invention not for the purpose of granting monopolies but as a mechanism to promote innovation. The mechanism is a compromise. Its function is to optimize, but not necessarily to maximize, the competing interests of encouraging innovation and minimizing the economic burdens that exclusive rights may impose on society. Unlike the Sherman Antitrust Act, the Patent Laws of the U.S. have a basis in the Constitution. The present and future economy of the United States is based on innovation.
11. Unrelated to O.T. Exodus (Second Book of Moses) 20:2-17, except as having a common basis in Judeo-Christian law. However, these are possible precursors to David Letterman's Top Ten Lists and a basis for a potential future cause of action against same for copyright infringement.
12. But see: Playboy Enterprises, Inc. v. Butler, et al. 839 F.Supp. 1552 (M.D. Florida 1993); Sega Enterprises Ltd. v. Maphia, 857 F.Supp. 679 (N.D. California 1994); 17 U.S.C. 503; and just about any patent case of the Court of Appeals of the Federal Circuit.
13. Software per se is not unpatentable. Gottshalk v. Benson. 409 U.S. 63 (1972). This is a subject for another paper.
14. But see 35 U.S.C. 103 and select the Lexis(r) LEXPAT library to search on the string "(OBVIOUS OR NONOBVIOUS OR NONOBVIOUSNESS) AND PATENT AND DATEAFT 1979". See also Chisum Vols. I-IC.
15. For an another view (pun attempted), see 35 U.S.C. 105 (Inventions in outer space); 35 U.S.C. 104 (Inventions made abroad, as amended to include special treatment for inventions in a "NAFTA" country).
16. But see 35 U.S.C. 102(f) and (g).
17. There are other good reasons for making copies. Forget the law. The first question asked by any Systems Administrator when a system crashes or a file is erased is: "Have you made a backup?"
18. But you can be fined for unauthorized representation as a practitioner. 35 U.S.C. 33. See also 35 U.S.C. 31.
19. Actually most lawyers aren't even scriveners. See "scrivener," The American Heritage Dictionary of the English Language, New College Edition (1976), p. 1167, definition 2. (A notary.)
20. Engineers hate lawyers. Both lawyers and engineers have the reputation of being terrible jurors.
21. Oft-cited and probably erroneous statistics probably based on inadequate double-blind cross-correlated testing but published somewhere many years ago by graduate students in psychology under the name of their thesis advisors.
22. DIALOG, aka Knight-Ridder Information Services, provides an excellent, though expensive, abstract service. The information available via Internet is sometimes free, if you know where and how to look, but you get what you pay for. The information available on the Internet is a potentially valuable resource. However, it is typically incomplete, frequently untimely and sometimes wrong. The U.S. Patent Office records are about two years behind the state of the art and suffer from serious problems of integrity. A reputed excellent source for searching the state of the art is the European Patent Office, International Search Facility, P.O. Box 5818, 2280 HV Rijswijk, The Netherlands. The Patent Searcher is an official of the European Patent Office. Cost for a simple search is $2000-$5000.
23. This is the serious stuff.
24. Must be read aloud to be appreciated. This is almost impossible to translate literally and is even complicated for a German, since it uses a very long adjective phrase modifying a noun instead of using a dependent clause, and it has three ending verbs.
25. The Japanese law of novelty is an "improved" copy of other law-as is much of the export product of Japan.
26. Private communication from a favorite Japanese patent agent.
27. This is the end of the serious stuff. The rest of this is a waste of your time. Go back to work.
28. Federal law applies to patents in the United States and its territories, including Guam and various U.S. protectorates which are not states.
29. As of June 8, 1995, U.S. Patent Laws conform to requirements under GATT. The term of a patent is set to twenty years from the priority date. The novelty law is impacted in technical ways too complex to explain here. New is a provisional patent filing procedure intended to level the playing field with respect to patent applications first filed in foreign countries. More than likely, U.S. inventors who use the procedure improperly will belatedly discover that they will lose all rights. Nevertheless, the U.S. inventor remains at a disadvantage with respect to foreign countries, since "strict novelty" is the law of the planet.
30. It takes approximately four hours for pirated commercial software to be transported via the Internet and put into production at counterfeiting factories in certain unnamed foreign countries.
31. It has happened. "Vaporware"-the phenomenon of announced software that does not exist-presents an interesting legal problem. When is it a publication or an offer for sale? The answer depends on the facts, a legal concept of an "enabling disclosure," and the skill of the advocates.
32. Old wives' tale promoted by tenure committees and journal publishers to the detriment of industry. This myth is also promoted indirectly by market imperatives.
33. A redundancy.
34. With apologies to the translators of the King James Version of the New Testament (1607).
35. There is no difference on its face. However, under the evidently defunct Doctrine of Equivalents, the obfucastory language might be more likely to ensnare the attempted infringer if, for example, the term "glass" were limited to its common meaning.
36. The Silicon Valley work ethic seems to require instant access to consultants and lawyers. Parties often play telephone tag and e-mail tag for days and never really talk to each other or even meet in person. Some firms have over 100 active clients per professional.
37. Parody of an old wine ad about old wine featuring Orson Wells. Both the wine and the ad are now very old, and Mr. Wells is dead.