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Patently Confused

August 17, 2010

Because I work as both a patent practitioner and a software engineer, I subscribe to several email “newsletters” and RSS feeds pertaining to patent news and to general technology.  Over the past few years I have read with some amusement the various news stories pertaining to the purported lunacy of patent protection (particularly so-called “software patents”), providing specific examples.  I would be the first to acknowledge that there are indeed some crazy issued patents out there — one great place to find these is at FreePatentsOnline (link).  Occasionally Gene Quinn, a patent attorney and blogger, writes about examples of humorous patents, such as these here.  Note that none of those listed by Gene in the aforementioned post includes software.

Anyway, the problem with many of the posts by bloggers without a solid knowledge of the patent process is that these posts often include agitating titles that assumedly stir up those with anti-patent bents, but without just cause.  The first and foremost mistake made in these articles is to state that someone has obtained a patent on something seemingly ludicrous, when in fact someone has only applied for a patent, but no patent has yet been granted.  As readers of this article are likely aware, one can file a patent application on anything, whether or not the subject matter is patentable — thus the examination process, wherein a patent examiner skilled in the related art examines patent applications to determine patentability.  For the patent examiner to grant patent protection to an invention, the invention in the associated patent application should, among other things, be directed to patentable subject matter, have utility, be novel, and not be obvious to one skilled in the art.

Another common mistake is to read solely an issued patent’s title and/or abstract to try to glean the scope of the patent’s protection.  Claims define the breadth of the patent’s scope, and can frankly often be difficult to understand by their very nature, usually including esoteric language that takes some effort to fully comprehend.

A less common error is to confuse a patent with a trademark, another form of intellectual property protection.  The genesis of this post was an article I found on Slashdot proclaiming “Town Gets Patent On Being the Center of Europe”.  Of course as soon as I saw that headline, I suspected something was amiss — i.e., how would that be patentable subject matter?!  Apparently the source of Slashdot’s post was a Techdirt post, which does not include such an alarming title: “Patenting The Geophysical Center Of Europe?”.  It would appear that the Techdirt author also harbored some doubts about the legitimacy of this odd event.  I  doubt too many of Slashdot’s readers made it this far (unfortunately), but I was happy to find this retort and adequate analysis by Michael Fötsch: “Patenting The Geophysical Center Of Europe?”.  Mike did his research, and discovered, of course, that the so-called “patent” was actually a trademark for the phrase “Center of Europe”.  As Mike duly notes:

So, what do we learn from this? Not much that we didn’t already know, I’m afraid:

  • Wikipedia contains a lot of dubious information.
  • Twitter is a good place to spread dubious information of all sorts.
  • Politic[i]ans will happily repeat anything they find on Wikipedia.
  • Techdirt isn’t afraid to do the same. But when they do, they add a question mark to the headline to cover their bases. 😉

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