One for Slashdot

PatentlyO2006031Published patent application No. 20020029208 is described as a “data gathering and distribution apparatus and method.”  A reader e-mailed the following claim, which comes from the application:

58. A data-gathering method, comprising: identifying source data to be gathered; automatically gathering at least a portion of the source data; and automatically distributing the gathered data to at least one selectable destination.

Even when the provisional was filed in 2000, it is clear that this would not have passed the blush test.  Fortunately, the application appears to have been abandoned.

22 thoughts on “One for Slashdot

  1. From the standpoint of an inventor(s) who has to declare under oath their inventorship of claimed subject matter, I would never proffer a “clean out” claiming knowing in advance that it was DOA. Certainly the inventor(s) would be a bit miffed given the possible untoward personal consequences.

  2. Mr. Crouch,
    “There is something wrong if proper claim drafting practice includes writing claims that are clearly unpatentable.”

    On the other hand, this is a very good claim to draft if you’re trying to ensure that there’s published prior art that “cleans out” a field of endeavor. It seems that Mr. Josephson has a habit of drafting claims that are as broad as the sky, so I have the feeling he’s doing it on purpose, and not because he thinks they’re patentable. This is just like drafting a specification that discloses far more than you have any intention of claiming. I can think of many reasons why a person would want to do this, all outside of whether he or she is looking to get a valid patent with those claims.

  3. If anyone read the set of emails from Aharonian about whack a mole prosecution, this claim, and some of the previous comments, explain why it happens. Dave and Erez are the types of attorneys or agents or inventors who induce a first office action with broad art because the claim is so broad the examiner has no idea what the actual invention the applicant wants. So art is applied, the claim is amended, new art is applied, and this process is repeated several times over several RCEs. Then attorneys with the “Dave and Erez” mindset will complain about being “whack a moled” because it took them three rounds of prosecution to reach an allowable claim.

  4. Jerry, I think that this post is very important if it can help us to figure out what compels patent attorneys to file applications covering technology that is clearly not patentable.

  5. What is the big deal? There are tons of patent applications claiming the sun, the moon and the kitchen sink.
    Is this really worth posting?

  6. Looks like one of those hasty patent applications from the dot-com era, when the VCs also pushed for patent application filings, too.

  7. Sorry for the above post, I obviously don’t really get it. In fact a lot of the stuff on Patently-O is way over my head. But I can’t keep myself from posting. I like seeing myself making cheeky comments.

  8. “I suppose there was a time when you could get away with filing a claim like that.”

    It is sometimes done to please the demanding but dense client who will settle for nothing less. “After all,” says this client, “So-and-so Company got claims that were broad.”

    How such people end up with the responsibility of determining how large sums of money is spent is a mystery. I think a good haircut, expensive clothes, and a tan helps.

  9. Further to Mr. Gur, I file claims in provisionals for that very reason – to provide basis for European/foriegn priority, not to mention that clients also feel they’re getting more bang for the buck when they see claims. And its easier, come conversion time, to prepare the actual claim set (as we all know, one year is a very short time).

    As an aside, that a claim like that was filed only indicates the wide disparity in talent among practitioners and a possible malpractice threshold. Also, with all due respect, it indicates how hard it can be to find a good patent attorney in California.

    Given that claim drafting is supposed to be a fun-duh-mental skill for patent attorneys, the degree to which many practitioners struggle to get out a broad-yet-patentable claim never ceases to amaze me, especially in the wake of Festo. I suppose there was a time when you could get away with filing a claim like that. You knew it wasn’t allowable, but you added a string of dependent claims of progressively narrowing scope each depending on the previous. The Examiner’s search and first action would be used to “dial in” the allowable subject matter. No more.

  10. This potential patent describes, in most likelihood, hundreds of thousands of application. I doubt it’ll ever be a patent. Furthermore, many existing software patents will already have it included.

  11. The practice of submitting a “set of claims which run from the broadest desired to the narrowest acceptable” is still constrained by the applicant’s need to swear (or declare) that he is the first inventor of the claimed subject matter, and his counsel’s need to advise him on that matter.

    That such a claim never issued in a patent may show that one part of the system is working, but that the claim was filed in the first place suggests that another part of the system is not.

  12. a. you usually file claims in US provisional applications so you will be certain that you will be able to claim priority with that document in Europe.

    b. You have to have at least one very broad claim to make sure you have unity of invention. Four-five years after filing the priority document the applicant should know more accurately what claims he/she needs and then you can limit the claims to something reasonable.

    c. Such a claim isn’t actually much of a bother for an Examiner. You do not need to search for any prior art as the claim reads on a mailman distributing letters in an apartment block by reading the address on the envelope.

  13. I believe that the major source of bad, really bad patent applications, and often patents is due to patent attorneys and patent agents, both of whom view themselves and salesmen, not professionals! These patent practitioners sell services, and often pretend that it is the fault of inventors that the invention is foolish. Typically, overly broad claims are drafted by lazy practitioners who do not bother to learn the actual invention, and lazy examiners allow such claims to meet quotas at the PTO. It seems odd that many of the “honest” patent practitioners accept the premise that the inventors are at fault.

  14. It’s claim 58 of over a hundred. So what!?

    As I recall, the USPTO asks for a set of claims which run from the broadest desired to the narrowest acceptable. If I throw in a very broad claim, I expect (and explain to the client) that it may be disallowed. A first-action allowance means I haven’t done my job of claim drafting properly. This one may be a bit broad, but maybe there are things in the disclosure which would define those terms in such a manner that they are not as broad as they appear.

    Dave

  15. “There is something wrong if proper claim drafting practice includes writing claims that are clearly unpatentable. ”

    No doubt.

    In other areas of our legal system, there are procedures and rules in place for sanctioning people who abuse the public trust by peddling frivolity and/or ignoring case law that is directly on point (and adverse to the party’s interest).

    To the extent the PTO has such rules and tools at its disposal, it should exercise them.

  16. What is the big deal here? I examine claims like this every day. Most of the applications I see have absurdly broad independent claims. So Slashdot found one absurdly broad claim buried halfway in a pile of 108 claims. Underwhelming.

    Now lets see the Slashdot folk examine several such applications per week on the PTO assembly line. I’d be happy to trade places with them: they’ll do the examination work, and I’ll play the game of “gotcha”.

  17. Ask yourself, why draft claims at all for the provisional patent? For any practicioner that has been denied provisional priorty due lack of 112 qualities that are not even required, it is a professional, experienced strategy that patent-bashers who are fixated on invention fraud fail to see.

    What if Slash had ended up with a commercial success based upon the specification of this disclosure? Wouldn’t such a claim position be strategically important? Do patent-bashers understand the landscape created by file wrapper estoppel?

  18. So what is the big deal? This patent is an example of the system working.

    People use silly or vanity patents as examples that the patent system is broken all the time when it is not. Then they compare those patents to some high profile patent dispute over a very valuable patent where the defendant has been found to infringe, usually willfully Then they claim that such is a miscarriage of justice, both the Blackberry case and Eolas are examples of this sort of claim.

    These claims are backed up with massive public relations campaigns which paint those who had valid and significant patents as trolls who abuse the patent system.

    Yet it is a fact that in such cases the defendants were found to have infringed, actually to have willfully infringed, and also to have conducted themselves very badly within the court.

    Invention Promotion Fraud:

    There is another aspect to such patent filings which everyone seems to be missing, and that is that the filer is often someone who has been conned by an invention promoter who fleeced the filer for between $10,000 and as much as $50,000 to file a worthless provisional or in other cases to get a worthless patent.

    For an example of this sort of patent see:

    link to google.com

    Draft inducers have been around a long time. In this case the draft inducer is supposed to turn on when the door is open to stop the room from filling up with smoke. Mr. & Mrs. Jones had failed to latch the door of a wood stove and nearly been overcome with smoke.

    1) The first problem is that this will case the stove to overheat. Perhaps burning to death may be better than suffocating.

    2) A squirrel cage blower discharges perpendicular to the rotation, so the design as shown will not induce any draft anyway.

    3) ISC link to InventorEd.org (changed their name to InventHelp.com) and Ivar Kaardal link to inventored.org got her this worthless patent.

    4) But IP&R was happy to victimize her a second time. See link to InventorEd.org.

    Mrs. Jones told me that they took over $5,000, getting the bulk of the death benefits she received when her husband passed away. This elderly widowed lady is on a fixed income She reports that once they had her money that they refused to return her calls.

    Ronald J. Riley,
    President – http://www.PIAUSA.org – RJR at PIAUSA.org
    Executive Director – http://www.InventorEd.org – RJR at InvEd.org
    Washington, DC
    Direct (202) 318-1595 – 9 am to 9 pm EST.

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