Can I patent something I don't even know how to make?

Factual Questions
21

Clarke’s claim to fathering the communications satellite (actually, I don’t know that he personally ever claimed this) relies not on his stories, but on as paper he wrote that appeared in Wireless World in October 1945. It was entiteled Extraterrestrial Relays – Can Rocket Stations Give Worldwide Radio Coverage?. I’ve never read it, but I gather it contains more proposal and explanation than appeared in the science fiction story.

Similarly, Jules Verne’s proposals were very well researched and based on contemporary work, even if he didn’t write them up in a technical journal. Except for such obvious fripperies as the “transverse helicoidal ray” in “The Hunt for the Meteor” (science fiction’s first “tractor Beam”, AFAIK), most of his stuff – aluminuim space capsules, composite-built heavier-than-air flying machines, rubber survival suits, etc., are pretty well described and highly probable.

22

Hmm – Here’s the Wireless World article on Clarke’s own home page. It looks like he does claim invention:

23

Damn – not his. Un authorized Homepage.

24

[QUOTE=gazpacho]
I have read one of his early stories about communication satellites. He is just talking about the concept os using the satellite as a platform for having a radio transmitter broad casting to what was below it. In his story people are worried that the soviet union will destabilize the US by broadcasting porn to the US and corrupting people.

[/QUOTE]

I remember a series of arthur c. clarke shorts about life aboard a communications space platform. IIRC he mentions telephone switching as well as radio relay, and maybe some kind of ‘moving picture broadcast.’

The thing that immediately stands out in retrospect, of course, is that it was written at a time when the potential of solid-state transistors was not yet fully understood (maybe the transistor effect hadn’t even been discovered,) which is why his communication satellites were so big and required a crew of astronauts - SOMEONE’s got to replace the vacuum tubes when they break, after all. :smiley:

25

[QUOTE=First Amongst Daves]
My understanding is that in most countries, the inventor is accreditted, but the owner (often the employer) is right there on the application form. Otherwise, how could you trust your employees to agree to assign down the track?
[/QUOTE]

From the USPTO FAQ page:

"6. If a first person furnishes all of the ideas to make an invention and a second person employs the first person or furnishes the money for building and testing the invention, should the patent application be filed by the first and second persons jointly?

A. No. The application must be signed by the true inventor, and filed in the USPTO, in the inventor’s name. This is the person who furnishes the ideas (e.g. the first person in the above fact pattern), not the employer or the person who furnishes the money."

Employers can have have patent rights assigned to them via several methods. E.g., the employee signs a contract at the time of employment (I have signed these for a couple of Universities I worked for) and there is also general case law that if you are employed to create something then your inventions automatically “belong” to the employer. You still need to actually sign off on forms (which can be done at patent application time but are not the same as the actual patent applications). If you refuse, lawyers drag you into court and Bad Things happen. The employer will almost certainly win so it’s a “why bother stalling the inevitable” situation.

26

First Among Daves writes:

> Arthur C. Clarke is the often quoted as the inventor of the communications
> satellite, but didn’t think to patent his sci-fi idea. So the next time you think of
> something neat like bouncing a radio wave off an orbital device, go and talk to
> a patent attorney first.

Note that in the article where he proposed communications satellites, he suggested both that the radio transmission could be received and retransmitted by (not just “bounced off”) the satellite and that the satellite could be put in an orbit where it orbited in exactly 24 hours (i.e., he came up the idea of geosynchronous satellites). Sometimes the idea is what’s important and not the implementation originally proposed. When Hedy Lamarr and George Antheil invented frequency hopping (Yes, really, they did. Look it up. Do I have to do all your homework?), they proposed implementing the idea by using player piano technology to switch back and forth between frequencies. It wasn’t until after their patent ran out that someone implemented it using electonics technology.

27

[QUOTE=chrisk]
I remember a series of arthur c. clarke shorts about life aboard a communications space platform. IIRC he mentions telephone switching as well as radio relay, and maybe some kind of ‘moving picture broadcast.’

The thing that immediately stands out in retrospect, of course, is that it was written at a time when the potential of solid-state transistors was not yet fully understood (maybe the transistor effect hadn’t even been discovered,) which is why his communication satellites were so big and required a crew of astronauts - SOMEONE’s got to replace the vacuum tubes when they break, after all. :smiley:
[/QUOTE]

An interesting question becomes – assuming Clarke gave a fully enabling and otherwise statutorily-compliant depiction of how to operate a relay com-sat using only vacuum tubes – could he later apply this to transistor-based satellites?

There’s no clear answer. A lot would depend on whether the “vacuum tube” references appeared only in his patent specification or “exemplary embodiments,” or if they were contained in the language of the patent claims (which are the legal metes and bounds of what’s protected). If the former, I think it would be easier to attempt to stretch some generic claim language ("a space-based relay station for reception and re-transmission of electromagnetic wave-transmitted media signals) to cover transistor based satellites, even when the patent only disclosed vacuum tubes as the means of implementation. (It could be harder if “vacuum tubes” were contained in the claims).

Funnily enough, there was an important satellite-related case very closely touching on this issue. In Hughes v. United States (“Hughes VIII”???), the issue was whether a patent written at a time when satellites couldn’t do certain complex computational operations (which instead had to be performed at groundstations) could be applied to newer satellites in which the claimed computational step could be and was performed on-board the satellite (wild-ass paraphrase). The court decided it could (not sure where the law has come since then – that was some years ago).

28

[QUOTE=ftg]
From the USPTO FAQ page:

"6. If a first person furnishes all of the ideas to make an invention and a second person employs the first person or furnishes the money for building and testing the invention, should the patent application be filed by the first and second persons jointly?

A. No. The application must be signed by the true inventor, and filed in the USPTO, in the inventor’s name. This is the person who furnishes the ideas (e.g. the first person in the above fact pattern), not the employer or the person who furnishes the money."

Employers can have have patent rights assigned to them via several methods. E.g., the employee signs a contract at the time of employment (I have signed these for a couple of Universities I worked for) and there is also general case law that if you are employed to create something then your inventions automatically “belong” to the employer. You still need to actually sign off on forms (which can be done at patent application time but are not the same as the actual patent applications). If you refuse, lawyers drag you into court and Bad Things happen. The employer will almost certainly win so it’s a “why bother stalling the inevitable” situation.
[/QUOTE]

I’m actually one of the poeple who make Bad Things happen. One of my clients just signed off on a bunch of patent applications for a software patent in around 15 countries. He signed off on most of them as both inventor and as a director of the owner. To be fair, I cannot specifically remember what the deal was with the US.

29

You can’t get a patent on an idea for a computer program, but you can get a patent for a method of implementing a program.

So you couldn’t patent “a program that adds two numbers”, but you could patent a specific method for adding two numbers in a computer program. The patent might look like this:

If that patent was granted, you would have the patent on that specific method of adding two numbers. Someone can come up with a different method to add two numbers, but you would own the rights for that specific method.

You can’t patent just ideas for programs, but you can patent algorithms and specific business methods.

Visit http://www.uspto.gov/patft/index.html to search existing patents.

That being said, enforcing a software patent is a lot of work. Having a patent is just a tool that you can use when you sue someone for infringement.

30

[QUOTE=filmore]
You can’t get a patent on an idea for a computer program, but you can get a patent for a method of implementing a program.

So you couldn’t patent “a program that adds two numbers”, but you could patent a specific method for adding two numbers in a computer program. The patent might look like this:

If that patent was granted, you would have the patent on that specific method of adding two numbers. Someone can come up with a different method to add two numbers, but you would own the rights for that specific method.

You can’t patent just ideas for programs, but you can patent algorithms and specific business methods.

Visit http://www.uspto.gov/patft/index.html to search existing patents.

That being said, enforcing a software patent is a lot of work. Having a patent is just a tool that you can use when you sue someone for infringement.
[/QUOTE]

The reason that you “couldn’t patent ‘a program that adds two numbers’” is, in the first instance, lack of novelty – such programs have existed for decades.

If they had not, and if one gave an enabling description of how to achieve such addition, one could (in the U.S. – and maybe only the U.S.) indeed obtain a patent that gave broad coverage over many methods (including different methods from those exemplary embodiments that you provided).

Put differently, there is no longer subject matter bar to patenting even broad software or business methods. (Perhaps there should be, but there isn’t). “Mere ideas” remain unpatentable, but “providing a program for adding two numbers” isn’t a mere idea, it’s a process that (if supported by proper enabling information as to exemplary and preferred embodiments) could be patented. As noted, novelty (Section 102 of the Patent Code), non-obviousness (Section 103) and the enablement/best mode/written description requirements (Section 112) are the real issues in play, and Section 101 (utility and patentable subject matter, i.e., “what kind of inventions are excluded from patentability?”) has been greatly diminished in importance.

31

There is the case of George Selden who patented the automobile in 1895 despite never building one.

32

[QUOTE=Huerta88]
The reason that you “couldn’t patent ‘a program that adds two numbers’” is, in the first instance, lack of novelty – such programs have existed for decades.
[/QUOTE]

This is one of those “theory vs practice” issues. There are an immense number of software patents for things that were well known and published decades before the patent was issued. One of my (least) favorites is one recently issued to PNW Lab in Washington. It’s for using a counter to keep track of the size of a task queue. Something goes into the queue add 1, something comes off subtract 1. Needless to say, pick up any 30-year-old OS textbook and you’ll see lots of examples of using this method.

Wow! That makes adding two numbers complex by comparison.

33

[QUOTE=ftg]
This is one of those “theory vs practice” issues. There are an immense number of software patents for things that were well known and published decades before the patent was issued. One of my (least) favorites is one recently issued to PNW Lab in Washington. It’s for using a counter to keep track of the size of a task queue. Something goes into the queue add 1, something comes off subtract 1. Needless to say, pick up any 30-year-old OS textbook and you’ll see lots of examples of using this method.

Wow! That makes adding two numbers complex by comparison.
[/QUOTE]

The Patent Office does an okay job of searching previous patents (which are usually unhelpful in software applications, because until 10 years ago “everyone knew” that “software is unpatentable” (except it’s not anymore). They do a far less okay job of searching literature (such as the system documentation you mention, or product manuals, or technical bulletins, or BYTE articles from 1981). They do a downright awful job (and could hardly be expected to do otherwise) in locating information about public uses of particular software or hardware configurations, especially the many special builds that are typically implemented either by system vendors or in-house systems engineers, consultants, etc. in adapting or updating an off-the-shelf bit of software. (To be fair, such engineers are often pretty awful about documenting their tweaks to the install).

Also, the Patent Examiners (many, many of whose native language is not English, and almost none of whom have any substantive legal (well, litigation-related) training) are ill-attuned to the word games that an applicant employing semantic obfuscation may (especially, in later assertion of his patent) employ in twisting abstract or deceptively-innocuous claim terms to cover something that, when put in plain English, was being practiced in the ancient Sumerian money-change-markets 3000 years ago.