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In past lives, I’ve been both a software developer at a startup and a patent attorney at a law firm. And if there is one thing that I’ve learned from these two separate lives, it is that reading patents is an acquired skill. Patents are meant to be technical disclosures that educate innovators. But over two hundred years of patent history and millions of patents, the language of patent law has turned into difficult legalese impenetrable to the engineers and scientists who were meant to benefit from patents.
Just a few months from now, the Supreme Court will consider just how far patent attorneys can push the boundaries on hard-to-read patents. And to bolster the argument that the public demands understandability, Public Knowledge and the Electronic Frontier Foundation have filed an amicus brief in that case, Nautilus, Inc. v. Biosig Instruments.
The case is over whether the courts have been too lax in policing patents for vague, ambiguous language. Currently, if a patent is acceptable so long as it describes an invention with words that are not “insolubly ambiguous.” This means that words in the patent can be “ambiguous,” having two plausible meanings, as long as some court—any court—can pick one definition over another.
Obviously, this “insolubly ambiguous” test is terrible for the public. A small startup, faced with an ambiguous patent, can’t tell if the patent covers the startup’s product, at least not before a long, protracted court battle. If patents are meant to disclose (excuse the pun) public knowledge, then ambiguous patents are a clever evasive maneuver.
One might think that ambiguous patents are less valuable, in the same way that an ambiguous textbook is less valuable to students. But the opposite is true. Ambiguities in patents can make the patent look like it covers more technologies than the patent actually covers. An aggressive patent owner can threaten people and small businesses with the patent, and those on the receiving end of the threats will likely give in given the cost of resolving the ambiguity.
An important aspect of our amicus brief is to point out that this is no theoretical problem. Many patents use ambiguous language to increase the value of the patent, to the detriment of public notice. So we found a few examples of this, which we are sharing with the Supreme Court, and which I’ll share with you here.
Dec 20, 2005
|“performance of the buyer while participating in a Price-Determining-Activity (PDA)”||Used throughout specification|
Nov 1, 2011
|“the buyer’s . . . participation in a competitive activity”
|Used twice in specification|
Jul 23, 2013
|“receiving data from a buyer representing participation in an intermediary activity”||Used once in specification|
These three patents are a good example of how patent language goes from clear to ambiguous over time. In the earliest patent, the term “Price-Determining-Activity” is used. If you read through the rest of the patent, that term (abbreviated PDA) is explained throughout the patent to mean a sort of game, like a video game, simulated stock market bet, or sports wager.
But the next patents use fuzzier terms like “competitive activity” and “intermediary activity.” What do these mean? Games? Business negotiations? Clicking on a website? The problem is that we just don’t know, and not knowing the meaning of a patent is unfair to the public.
June 16, 1998
|“method of inputting information from a diversity of hard copy documents”|
Jul. 25, 2000
|“parsing a portion of data from a hard copy document corresponding to at least one field”|
Jan. 27, 2004
|“an extraction mode to parse at least a portion of said document or file to automatically extract at least one field”|
This is a case where the ambiguity of the patent actually made it to the Court of Appeals. The patents dealt with a paperless office system, in which files were scanned into a computer and stored in a database. The original patents all clearly spoke of scanning a “hard copy document” and reading data off of it.
But as technologies changed, the patent owner sought to also cover electronic files. So it acquired another patent that used the term “document or file” instead of “hard copy document.”
The Court of Appeals read the patent and concluded that the language could only reasonably refer to hard copy documents. The description of the invention was entirely about hard copy documents, and all the previous patents spoke of hard copy documents. Indeed, the appeals court actually permitted sanctions and fines against the patent owner and its attorneys, for advocating for an interpretation of the patent to the contrary.
The one thing that the Court of Appeals did not do: hold the patent invalid for being ambiguous. And this is unfortunate, because prior to the case making it up to appeal, the patent owner had already threatened over a hundred small companies with the patents. If only those patents had been clear and easily readable, those hundred companies would not have had to suffer.
All of these examples share a common thread of patents with ambiguous language, permitted due to laxity in enforcing claim clarity rules. This makes patents unreadable and valueless to the public. To prevent this abuse of the public trust, we are urging the Supreme Court to demand greater clarity in claim language.
Image credit: Clifford E. Albert, Deck of Cards, US Patent No. 1,727,800, issued Sept. 10, 1929.