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Mark Rhodes Explains Patents
So what is a patent illustration, and why should we care?
Everyone owns intellectual property. This sort of
property consists of the thoughts and ideas that rumble around
in [most] everyone's head as a consequence of moving through
the world and having anything to do with it. I qualify
the foregoing, because I have met people that seemed to indicate
that even though the lights were on, nobody was at home. This
number seems to have been growing for the last 150 years with
a direct correlation to the rise and entrenchment of state-sponsored
public education with its afterburners kicked into egalitarian
overdrive since the early sixties. But I digress.
The ability to claim our thoughts and ideas as our own property
no less than our horse and buggy or the woman we clubbed over
the head and dragged back to the cave is as old as thinking itself.
And I don't remember when that began. The ability
to PROTECT that Intellectual Property and DEFEND it against appropriation
and use by others is one more happy result of the United States
Constitution. In the same way that "rights are not
granted to citizens by government but are recognized to be pre-existing,
as an endowment by a Creator, so does the Constitution acknowledge
that the "right to life, liberty, and property also includes
our thoughts at least to the extent that another could profit
thereby were he to be so mean and nasty (or just smart) enough
to see a good thing and have the initiative to steal it for his
own.
In general we call these people lawyers. There are others
who will steal others, ideas for profit, and these are usually
industrial capitalists with a lot of industry to drive and capital
with which to drive it. These are usually the most successful
at appropriating others, Intellectual Property, because any time
a spirited defense of one's property is mounted against a predator
the cost to both sides can get quickly out of hand. As
in most such cases the lawyers involved are the ones who profit
most. When I make a casual acquaintance who comes to find
out that I'm involved with patents and such, it is inevitable
that I hear of some new idea for a world-shaking invention and
how do I get a patent on it.
To the more persistent ones I usually advise that the acquisition
of a patent is far from the end of the rainbow, but rather the
beginning of sorrows. The cardinal rule of this business is:
IF SOMETHING IS WORTH STEALING, SOMEONE IS GOING TO TRY. There
are no exceptions. Who cares if you have a piddly little
thing that might make you a few bucks and renew your faith in
the System by having successfully participated in the Process;
if there is big money involved, your invention will be attacked,
and that without mercy. It must be borne in mind that the
Patent Protection so desperately sought is a Negative Protection.
It does not confer upon the inventor anything whatsoever.
It merely recognizes the fact of invention and ownership
of Intellectual Property. It is exclusionary in nature
in that it PROHIBITS all others from making, possessing, or selling
anything that may be construed to have arisen out of an application
of the ideas protected by the granting of a patent. It
EXCLUDES all others, and grants the inventor nothing at all but
the exclusionary protection to capitalize on the fruits of his
own brain children for a period of seventeen years. The
process of protecting those children and bringing them up right
is up to the inventor.
You had better be ready, willing, and able to defend your
patent or lose it. And God forbid that it should have even
the remotest of military application; the number one and most
successful predator in these cases is the federal government
itself -- the very institution designed to protect the inventor
is his most formidable adversary. I used to do work for
a man in Indiana who specialized in the promotion of inventions
and the subsequent acquisition of venture capital. He was
the friend of the 'little guys' and one of the original TroubleMakers.
He also held several of his own patents which were framed
and lined the wall of his den like so many trophies.
Among these trophies and by far the most infamous was his
patent for the electrostatic gyroscopic guidance system since
used in most all the delivery systems of intercontinental ballistic
missiles. When his patent application was filed, the military
significance was obvious, and the Defense Department promptly
appropriated his invention and contracted Rockwell International
to build guidance systems based on this new technology. Naturally,
my friend sued the government for infringement, and (surprise!)
has been tied up in court for the last 30 years in futile efforts
to obtain justice and recompense from the Owner of the System
and its Courts. This is not just the voice of cynicism
speaking; it is reality, and if you can't stand the heat, don't
go near the kitchen.
Now, assuming you are the garden variety inventor who would
love nothing so much as to clutch your letters patent to your
bosom as you drift off to sleep at night with that big smile
that can only come from having actually seen the very fishing
lure that you invented in the sporting goods aisle of K-Mart,
you might actually have a Nice Time. Although the law provides
that anyone can prepare and file their own Patent Application,
nothing could be more foolhardy for the average Joe in today's
climate. All submissions are examined by an Examiner at
the United States Patent and Trademark Office and are judged
patent-worthy on two primary criteria: usefulness and novelty.
Usefulness is a subjective thing and in the eye of the beholder,
and I can't think of anything in my experience that has been
rejected as not useful. One man's floor is another man's
ceiling. Apparently no one has tried to patent tits on
a boar hog. As far as novelty is concerned, your invention
will be held up by the Examiner against all the Prior Art in
the particular field of inventions. Your fishing lure will
be held up next to all other fishing lures that have ever been
patented, and it must be determined that there is something unique
and novel about your fishing lure that should induce the Examiner
to grant you letters patent for having invented it.
It is quite literally a trial. The attorney you have
retained to get you a patent is literally prosecuting your application. You
have asserted the novelty of your invention, and your attorney
is the prosecutor. The Examiner at the USPTO is in the
role of defense attorney whose defendant is the body of Prior
Art which is the object of your assault. He must defend
the Prior Art against your attack by saying see here, your fishing
lure is just like this one here and this one here, so it's not
new. And your attorney comes back and argues ah hah! but
don't you see that this, this, and this are different? Therefore
we have withstood the test of novelty against the Prior Art and
are entitled to patent protection. And the Examiner will
say, OK, but change this wording here, and amend that over there,
and I will allow it based on 12 out of your 37 claims. So
most all patents are granted based on a negotiated settlement
of sorts based on subtleties and nuances of novelty. I
can count on one hand the truly breakthrough, totally never-been-done-before
why didn't I think of that myself inventions that cause you to
think about them long after the job is done as pretty goddam
smart by God. These are the ones that keep this job interesting
and worth doing.
So your fishing lure is all invented,
you intuitively perceive that you NEED an attorney, and he is
working away as feverishly as your retainer to him will allow.
He is writing a Detailed Description of the Invention and
the Drawings along with the Claims pertaining to what is actually
being claimed as new and inventive about your fishing lure. He
has contracted me (because I'm the best there is) to illustrate
your invention, and he must necessarily disclose it to me any
way he can. Maybe you have shop drawings for the manufacturer.
Maybe you have sketched it out on a dinner napkin at the
Rustler Steak House where you both met over lunch to discuss
the Next Big Thing in Fishing. Maybe you actually made
one out of your kid's PlayDough and painted it all up and took
some Polaroids. Hell, I've even had emergencies where the
attorney called me up and described it over the phone as I took
notes and sketched and got him an illustration to file the same
afternoon. That's why I get the big [sic] bucks.
Mark Rhodes
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