source file: m1527.txt
Date: Sat, 12 Sep 1998 08:22:26 -0500

Subject: Re: 19 tone patent

From: Gary Morrison <mr88cet@texas.net>

> It a sad fact of life that patents are issued
> every day for items and ideas in long and common use.

   Sorry if I'm getting too far off the subject of tuning here, but for the
record...

   You can apply for a "utility" patent (as opposed to a "design" patent,
which covers visual appeal rather than practical value), if the invention:
1.  Fits into a "statutory class".  The PTO (Patent and Trademark Office)
keeps a
   database of probably something like about 50,000 to 100,000 classes and
sub-
   classes of patentable topic matter.
2.  Is not a perpetual-motion machine.
3.  Is not a plant, in the biological sense of the word (there's a separate
type
   of patent for plants).
4.  Is not an already known idea.
5.  Is "unobvious".  (I always thought that that word should be
"nonobvious",
   but whatever...)  You can't patent something all of whose components are
   known, unless their combined effect is something surprising.  For
example,
   you can't patent asprin, but around the turn of the century, somebody
   patented putting asprin into pig feed, because he found (probably
accidentally)
   that doing so makes them reproduce more successfully.

   Almost invariably, a patent examiner initially rejects a patent
application for one of the last two criteria, and the applicant files a
"protest" explaining why the examiner's claims don't make sense.

   But anyway, as for a patented invention being "in long or common use", a
lot of people don't realize that patent law not only prohibits you from
patenting things that have not been patented before, but things that are
known in any way.  That then leads to what are called "defensive
publications", wherein you conclude that you can't or don't see enough value
in patenting something, so you instead write a detailed article in a major
industry journal about it, solely to prevent anybody else from patenting
it.  Probably somewhere around 20% of articles in engineering journals are
defensive pubs.

   Now, it's also important to understand the claims of a patent (typically
the last third of a patent, wherein the inventor states what s/he claims as
intellectual property).  They start extremely general and get more and more
specific.  A court will often throw out the first few claims because they're
just too general.  Patent attorneys include them largely to narrow the scope
of, or define terminology used in, the later claims.  Claim #4 of a lot of
patents read something like "a system as in claim 3 such that...".

   Although it's not likely, Yamaha might claim something as broad as a
guitar, knowing full well that anybody can defeat that claim, just so that
they can legally define what a guitar is for their later claims.

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End of TUNING Digest 1527
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