A Poor Man’s Tale of a Patent

John Smith's book got me thinking about the Charles Dickens 1850 essay titled “A Poor Man's Tale of a Patent.”  The essay — much like Smith's book — derides difficulty of obtaining a patent. In Dickens world, the patent applicant was forced to walk through 35–stages and spend the equivalent of $15,000 in order to obtain a patent. 

PatentLawImage066But I put this: Is it reasonable to make a man feel as if, in inventing an ingenious improvement meant to do good, he had done something wrong? How else can a man feel, when he is met by such difficulties at every turn? All inventors taking out a Patent MUST feel so. And look at the expense. How hard on me, and how hard on the country if there's any merit in me (and my invention is took up now, I am thankful to say, and doing well), to put me to all that expense before I can move a finger! Make the addition yourself, and it'll come to ninety-six pound, seven, and eightpence. No more, and no less. . . .

Look at the Home Secretary, the Attorney-General, the Patent Office, the Engrossing Clerk, the Lord Chancellor, the Privy Seal, the Clerk of the Patents, the Lord Chancellor's Purse-bearer, the Clerk of the Hanaper, the Deputy Clerk of the Hanaper, the Deputy Sealer, and the Deputy Chaff-wax. No man in England could get a Patent for an Indian-rubber band, or an iron-hoop, without feeing all of them. Some of them, over and over again. I went through thirty-five stages. I began with the Queen upon the Throne. I ended with the Deputy Chaff-wax. . . .

I will now conclude with Thomas Joy. Thomas said to me, when we parted, 'John, if the laws of this country were as honest as they ought to be, you would have come to London – registered an exact description and drawing of your invention – paid half-a-crown or so for doing of it – and therein and thereby have got your Patent.' My opinion is the same as Thomas Joy.

The British government was apparently quite moved by the essay and quickly passed the Patent Law Admendment Act of 1852 that established a single office to control patenting. It was not until 1883 that the British Patent Office began a limited examination of the patents — although even at that time the concern was only whether the specification sufficiently described the invention.  As you might expect, Dickens tale was an exaggeration.  The UKIPO reports that in 1850, a patent applicant only needed to visit seven offices (paying the appropriate fee at each).

In a recent essay, Professor Scott Kieff uses Dickens to argue against further layers of post-grant opposition procedures — writing that “[t]oday's patent system already too closely resembles the burdensome and byzantine procedures described in Dickens' A Poor Man's Tale of a Patent. Adding subsequent windows of administrative review will only make matters worse. A better direction is to strip away the range of inter partes administrative procedures and adopt the set of changes to court litigation that are proposed below.” Kief's proposed changes include “easier access to enhanced damages” and a reduction of the presumption of validity. F. Scott Kieff, The Case For Preferring Patent-Validity Litigation Over Second-Window Review And Gold-Plated Patents: When One Size Doesn't Fit All, How Could Two Do The Trick?, 157 U. PA. L. REV. 1937 (2009).

 

 

71 thoughts on “A Poor Man’s Tale of a Patent

  1. I am the iliterate inventor who wrote the International Patent for the treatment of skin cancer. For the bad mouthed, opiniated people who tried put Mr. Rogers and myself down, I say this; I discovered that this homemade medication works on cancer by accident. I uded it for many years for back payne and one day I decided to try it on my many skin cancer lesions and it worked. Trying to find in the internet why it worked, I found out about the vast scientific research done with hot peppers. The mistake the scientists have done is the one of using Capsaicin pure in their resarch. If they had used fresh raw peppers, they would have found a cure for all kinds of cancer a long time ago. I can prove to anybody that what I have not only cures cancer, it cures it in 2-3 days. I am 78 and I would not begin selling snake oil at this age. Mr. Rogers is a great human being and he has helped me almost for free, because he trusted my honesty,and the people trying to put him down are nobody compared to him. Francisco Siveira

  2. I never knew before that Charles Dickens had written on patent law. Of course, since Dickens was paid by the word, I can see the connection between his writing style and your typical patent claim. In any case, it’s a great find; thanks for the link.

  3. Although I actually don’t have time to read the posts anyways

    Nothin like a disinterested, non-knowledgable opinion, now is there James?

    Perhaps if ya took the time to enjoy the banter, ya might pick up a lesson or two from my brilliant observations. Lots of people do.

  4. I would agree on some type of moderation. Although I actually don’t have time to read the posts anyways, I would be more inclined if helpful suggestions/advice filled the comments rather than denegrating comments all the time.

  5. dearest sarah

    I need no proof. Didn’t I comment on the “Y” rather than the “a”?

    Do you see the message though? Ask “Y” must start at the beginning – the “a”. Who was there at the beginning (but perhaps only in a small way)?

    Persevere sarah – but be true to yourself as you do – retain the ability to freely admit honest mistakes and let those go.

  6. Why haven’t you posted the comment I just wrote special for pingaling proving even my Emails have been messed with. Obviously “I DON’T TRUST ANYONE”… for good reason WOULDN’T YOU ALL AGREE?

  7. ping: it be me and my pals Sunshine, Harry-O, Pang, Registrar, Get Help, and even you, my fuzzy “one-of-a-kind” moderator.

    6: think probably Mooney, JD, NAL, JAOI, AI, NWPA and on and on down the list of well known posters fit in this category. Just based on the content of their posts anyway.

    Oh and one other person, DC.

    ): I didn’t make the honor roll qq

  8. “Here we likes our moderation to be moderate.

    Who is this “we” that you’re speaking for? You, 6, and Michael R. Thomas?”

    I think probably Mooney, JD, NAL, JAOI, AI, NWPA and on and on down the list of well known posters fit in this category. Just based on the content of their posts anyway.

    Oh and one other person, DC.

  9. Here’s a hint: ya gotta bring in the people befores the people will actually read the articles. The Big D knows what he is doin – witness the Don’t Patent article with 158 comments and running.

    Now with me ya get the bonus of steak and sizzle. Lucky you.

  10. No, Of course not, it be me and my pals Sunshine, Harry-O, Pang, Registrar, Get Help, and even you, my fuzzy “one-of-a-kind” moderator. Let’s face it – with any strict moderation, the comment level on this blog would bottom out in a hurry.

    And what fun would that be?

  11. Here we likes our moderation to be moderate.

    Who is this “we” that you’re speaking for? You, 6, and Michael R. Thomas?

  12. a lack of effective moderation

    I’ll say, even vacuous comments like “what I believe to be a very compelling and eminently practical proposal for just such a system” made it through. Wow, what a crrppy filter.

    As for Eskimo land, that would be extreme moderation. Here we likes our moderation to be moderate.

    As teh saying goes, All things in moderation. And that includes the moderation.

  13. True rc its tough writing a patent off of a 3 line disclosure and bein the skeptical person I am I would call it all bs too but tell that to the person who soccessfuly used it on her skin cancer. ?

  14. Mr. Rogers: “You are correct with your publication. Good work. Shows you read. But again you bring in your presumptions.

    […]

    You are again correct on your cite. I commend you. I wish I had the time to actually do the research you do. But no I did not write that. The inventor did. It is not written well, I agree. ”

    What presumption? I actually said I hoped you were NOT involved in drafting WO 2009/041941 A1. You confirm my hope. You may need to recalibrate your sense of humor, though, although I understand it may suffer a bit from working with clients like that…

  15. Those who have followed my comments elsewhere

    blah blah blah

    what Ronnie?

    blah blah blah

    Can’t hear you Ronnie.

    Speak up son – way too much pretension in the room.

    Whats we really need is a eminently practical tiered comment system inwhich pipedreams and pur fantasy drivel are eliminated. Sorry Ronnie, ya wouldn’t get through on such.

  16. Those who have followed my comments elsewhere know that I simply filter out the ad hominen noise before responding to whatever content, if any, may remain. The comment system on this blog has two deficiencies: No email notification, and apparently, a lack of effective moderation.

  17. but the comment system here

    Um, would thatta be an eminently practical tiered comment system, Ronnie?

    Come now Ronnie, ya just started ta bring the chuckles – and I knows you have so much to share.

  18. OK. Back to Eskimo-land for me. Both blogs are great but the comment system here leaves a bit to be desired.

  19. It is presumptious without any basis to call it snake oil. Let the market determine that.

    Considering that the purpose of snake oil salesmen is to mislead the market, it doesn’t seem appropriate to let the market decide.

    We perhaps could learn a lot from a book like that above from the perspective of the people doing the inventing.

    I’ve learned that the people doing the inventing also find it easy to make presumptions about obviousness. What’s more, they always presume the same way.

  20. To get back to my point with the book above. I think that it is easy for patent examiners/attorneys to make presumptions with elusive concepts like obviousness. We perhaps could learn a lot from a book like that above from the perspective of the people doing the inventing.

  21. Jtdog you quote:

    “James, I checked out your client’s website. It appears that he is making a claim to treat cancer without FDA approval. Trouble – you should advise him of that. On the patent side, sounds like the “invention” is simply not new, unless there is some nonobvious formulation going on. And how do you know that the traditional Indian medicine doesn’t work — you have some data to back that up? No one wants to wipe out entrepreneurs, but patents are granted for inventions, and the FD&C act exists to protect consumers from snake oil salesmen… of which there are far too many these days, and far too many people suspicious of medicine and science who gobble up what snakeoil salesmen sell.”

    I am not an FDA specialist so will take your advice as is unless perhaps someone else could comment. I am under the impression that natural herbs are not subject to FDA regulation. But you are probably correct where there are claims as to treatment. If someone with expertise in the area could comment would be appreciated.

    The other part I obviously do not agree. It is presumptious without any basis to call it snake oil. Let the market determine that.

    James Rogers

  22. RC: you quote: “On the patent side, sounds like the “invention” is simply not new, unless there is some nonobvious formulation going on.”

    Is my point exactly. You are assuming that the patent is not new. Something is different. It works.

    You cite: “The US patent application Mr. Rogers refers to is apparently published as US 2010/0166895 A1. No snake oil explicitely mentioned, but apparently only vegetable oil, alcohol and habanero extract.”

    You are correct with your publication. Good work. Shows you read. But again you bring in your presumptions.

    You quote: “I just hope Mr. Rogers wasn’t involved in drafting his client’s previous international patent application, published as WO 2009/041941 A1…It must be noted that in its search report the somewhat relevant earlier patent 6,235,788 was cited.”

    You are again correct on your cite. I commend you. I wish I had the time to actually do the research you do. But no I did not write that. The inventor did. It is not written well, I agree.

    James Rogers

  23. “They don’t seem to realize that if they simply cooperate and do their jobs efficiently, they could be arguing in their spare time.”

    Yet another reason why IANAE is the MAN.

    Perhaps “Pang” might ponder this possibility.

    Which possibility? That IANAE is the MAN?

    Sorry, ping, I don’t do “pondering.” Iza jus do observations, doncha know…

  24. but no duty in terms of how hard to search for what may be unknown

    Let the chuckles begin – Ronnie-boy, there aint no duty of any kind to do any searching. Ya might check into a little case called Tafas ta see why.

  25. Actually the law is silent regarding the details of how exhaustive a prior art search needs to be.

    OK. So what? Ya see Ronnie – that’s not the point – the law does require that an examination be done. It dont need to specify just how exhaustive the search need be.

    In fact, if an examination could be done without any search, then that examination would be valid.

    I done seen your “eminently practical” tiered system discussion over at the Eskimo’s place. There be nothin “practical” about what ya be left holdin after the guts fall through the holes. But please start your handwaiven over here – Iza could use the chuckles.

  26. “I guess that’s why my clients are getting patents in >90% of cases without any appeals or RCEs.”

    … meaning of course that Mooney holds the world’s record for most picture-frame patents issued.

  27. Actually the law is silent regarding the details of how exhaustive a prior art search needs to be. Of course there is a duty to disclose what is known, but no duty in terms of how hard to search for what may be unknown. I was merely responding to Kieff’s position that a tiered examination system would be no more effective than the current system. I disagree. Kristen’s Osenga of Richmond University has made what I believe to be a very compelling and eminently practical proposal for just such a system. Of course it would require legislative and administrative changes to put something like than into place.

  28. Alun,

    I am certain that in less than a century we can look back at this very blog and find many things that are peculiar as anything Dickens could have made up.

    In fact, ya can usually find them on the hour and finding these pecularities be one of my hobbies (hint: look for the horse tracks).

  29. Dennis, I’m afraid you do have the date wrong by a mere century, it should be 1852. Odd that the first English patent was dated 1617, and yet the Patent Office wasn’t created until 1853, under the first Comptroller General, George Woodcock.

    It was apparently Woodcock himself who catalogued all the existing patents, and assigned number 1 to a method of map making (before there had been no numbers). Later others discovered patents of invention that Woodcock had missed, some of which which pre-dated 1617.

    Of course, by 1853 it had become Great Britain, and separate records of English and Scottish patents would have had to be combined by Woodcock. The last time I visited the Science Reference Library, it was still possible to handle the hand-written ledger listing all the Scottish patents.

    Although there was never a Deputy Chaff-wax, one of the seven offices one had to visit was the Office of the Petty Bag, which sounds just as peculiar as anything Dickens could have made up.

  30. The US patent application Mr. Rogers refers to is apparently published as US 2010/0166895 A1. No snake oil explicitely mentioned, but apparently only vegetable oil, alcohol and habanero extract.

    Reminds me of a shot my uncle invented called “The Hot Bottom”.

  31. IANAE,

    Yes! Thank you, it was the argument sketch I was thinking of…

    I’m skeptical of a registration system as well, but spending money to examine patents that will never be licensed or litigated is a waste as well…

  32. They don’t seem to realize that if they simply cooperate and do their jobs efficiently, they could be arguing in their spare time.

    Yet another reason why IANAE is the MAN.

    Perhaps “Pang” might ponder this possibility.

  33. No matter the client, one is not the client, and the client’s demeanor has absolutely no bearing on how one should behave (Oh Behave).

    This is not a matter of “tempering anyone’s enthusiasm”, it is a manner of ethical behavior.

    No Excuses. F the prisoner’s dilemma.

  34. the most cut-throat and most despised area of the legal profession: divorce law.

    It bears mentioning that the litigants themselves tend to be pretty vicious in divorce cases, and many of them probably wouldn’t hire a lawyer who might, shall we say, temper their enthusiasm.

    There’s also a kind of prisoner’s dilemma, because if Lawyer A plays fair Lawyer B will cause no end of trouble for Client A, as your anecdote demonstrates.

  35. Speaking of scum-bag and incompetent lawyers — which I think is what both Dickens and Smith are talking about — here’s an example of both and how bad it gets in the most cut-throat and most despised area of the legal profession: divorce law.

    link to vsb.org

    Lawyer A drafts the final order and scrws it up by swapping the payer of damages for back child-support with the payee. Not a minor error.

    Lawyer B, who is the brother of and represents the party the judge order to pay damages, endorses the flawed order, waits for the 21-day period for finality of the order to run, and then tries to get child services to enforce it against the party who was supposed to be the payee.

    Penalty for Lawyer B: public reprimand, to which this comment is a humble contribution.

    I think I’d rather have to deal with incompetent examiners like “6” and his ilk, than divorce lawyers. But it’s a close call.

  36. hhhmmm, yummy.

    Be otch sessions – we all know just how effective those are (specially the ones constrained merely to mere blog comment pages and lacking any real-world actions).

  37. Dickens was certainly no fan of the judicial system of his time and place. Recall his novel Bleak House?

    Here’s an excerpt from the Wikipedia on that one:

    “Dickens’s assault on the flaws of the British judiciary system is based in part on his own experiences as a law clerk, and in part on his experiences as a Chancery litigant seeking to enforce his copyright on his earlier books. His harsh characterisation of the slow, arcane Chancery law process gave memorable form to pre-existing widespread frustration with the system.”

  38. “These days, it’s more like having to pay another pound for another five minutes of argument.”

    Worse than that: “That’s not argument, it’s just contradiction”.

  39. and therefore should only be undertaken when there is an actual or potential dispute

    Cepts that aint how the law be written.

    The Law is good. Follow the Law.

  40. So, how to get started down that path is manifestly an intractable problem.

    One useful starting point is the examiner’s phone number, generally found on the last page of the office action.

  41. IANAE’s last para is all very well, that the public would benefit if ex parte pre-issue examination on the merits were to be conducted in a more collegial spirit. Since both Applicant and PTO have the same objective (one to get a valid patent, the other to issue one), one would think that such collegiality would be “a given”. So, how to get started down that path is manifestly an intractable problem. Some say the Presumption of Validity is set too high, and others that it is set too low. And both have powerful arguments. Who is right, on that preliminary point? Will SCOTUS give us an answer soon?

  42. I’m grateful to “RC” for doing the research. I had been thinking that the piece from Rogers was a witty and skilful parody of what ill-informed and badly briefed inventors routinely assert. I’m disappointed.

    I suppose my misapprehension was my own fault, brought on by reading too much stuff from Michael Thomas.

  43. Why does this tale remind me of a Monty Python sketch?

    These days, it’s more like having to pay another pound for another five minutes of argument.

    I suppose it’s not a problem unique to the patent world, but nobody seems to be able to see beyond their own interests. Naturally, the inventor thinks he should be able to put his spec down on a counter, get a ribbon affixed, and walk away a few dollars poorer. We’ll sort out the validity issues later.

    Actually, that’s precisely what Dickens apparently did. Sure, there was more than one fee to pay, but getting his patent was a sure thing and he could know in advance exactly how much it would cost. Any modern applicant would gladly trade today’s procedure for that one. These days, you’d simply check seven boxes on the PTO website.

    There are two obvious problems with a registration system, which people apparently forget as soon as the patent office starts hiring examiners. The first is that anybody can get a custom right of action rubber-stamped and immediately go around griefing whomever he likes. The second, not unrelated, is that the first determination of validity is done in the courts, where it’s hideously expensive and time-consuming. Anybody who thinks patent prosecution is too expensive should thank their lucky stars that they don’t have to do the same in court, with expert witnesses, oral hearings, and five billing lawyers on each side.

    Still, we might care to take a closer look at how all that time and money are wasted in prosecution by agents and examiners who are incapable of talking to each other and reaching an agreement. They don’t seem to realize that if they simply cooperate and do their jobs efficiently, they could be arguing in their spare time.

  44. I read Kieff’s essay and agree with the basic proposal for parity in terms of the standard of evidence and so forth between the parties to a patent dispute. But I’m not convinced that judical reform precludes the need for administrative reform as well. The key underlying problem is with the prior art search. An exhaustive search is costly, and therefore should only be undertaken when there is an actual or potential dispute. But I see no reason to get the courts involved at that stage. An admistrative solution, augmented by private-sector assistance (along the lines of Peer-to-Patent or Article One) would seem to be the most effecient and cost-effective way to accomplish an exhaustive prior art search.

  45. “On the patent side, sounds like the “invention” is simply not new, unless there is some nonobvious formulation going on.”

    The US patent application Mr. Rogers refers to is apparently published as US 2010/0166895 A1. No snake oil explicitely mentioned, but apparently only vegetable oil, alcohol and habanero extract.

    I just hope Mr. Rogers wasn’t involved in drafting his client’s previous international patent application, published as WO 2009/041941 A1…It must be noted that in its search report the somewhat relevant earlier patent 6,235,788 was cited.

  46. “As you might expect, Dickens tale was an exaggeration. The UKIPO reports that in 1850, a patent applicant only needed to visit seven offices (paying the appropriate fee at each).”

    Oh, ONLY seven? Why does this tale remind me of a Monty Python sketch?

  47. James, I checked out your client’s website. It appears that he is making a claim to treat cancer without FDA approval. Trouble – you should advise him of that. On the patent side, sounds like the “invention” is simply not new, unless there is some nonobvious formulation going on. And how do you know that the traditional Indian medicine doesn’t work — you have some data to back that up? No one wants to wipe out entrepreneurs, but patents are granted for inventions, and the FD&C act exists to protect consumers from snake oil salesmen… of which there are far too many these days, and far too many people suspicious of medicine and science who gobble up what snakeoil salesmen sell.

  48. This from James Rogers reads more like something from The Onion, than from a patent application about chilly (sic) Peppers. Mr Rogers, your talents are wasted on this blog.

  49. A lot of truth in this book I’m sure. It is always counterintuitive that the countries with the strongest IP protection have the best economies. Why do we need such great roadblocks to patents as seems to be the course the past 5 years? If the invention is truly worth something then the patent’s validity will surely be examined later on in litigation if there is any doubt about it. Is that so bad?

    I recently filed a patent application for a composition comprising ingredients from hot chilly peppers for a small inventor. A protest was filed by an Indian company recently citing literature dating back 1k years that peppers were known to cure cancer. I can just feel the wave of roadblocks coming from the PTO in the form of an obvious rejection. The only difference between that literature and my client’s invention, however, is that my client’s product actually cures skin cancer as attested to by several of the consumers who have bought my client’s product. If interested see my client’s website at http://www.cancerfin.com Why try to wipe out inventors who take the initiative to market such products? Without the prospect of a patent (unlike what the author argues above) inventors will do the opposite from what is cited above, they will do everything and anything to keep their inventions secret.

  50. Dennis,

    Was the following quoted passage meant to be ironic or is the date wrong? Or am I missing something?

    “The British government was apparently quite moved by the essay and quickly passed the Patent Law Admendment Act of 1952 that established a single office to control patenting.”

  51. why my clients are getting patents in >90% of cases

    Yes, and the rejection average for your art group – as provided by the big D – was what again?

    So adjusted that pitiful average by removing your oh-I’m-so-great average tells an even more dismal story for your art group.

    Instead of chasin windmills there Sunshine, maybe you should be sharin your great knowledge with the rest of practicioners in your art group.

  52. In England, as long ago as 1892 the Master of the Rolls (senior appeal judge) said: “A man had better have his patent infringed, or have anything happen to him in this world, short of losing all his family by influenza, than have a dispute about a patent. His patent is swallowed up, and he is ruined. Whose fault is it? It is really not the fault of the law: it is the fault of the mode of conducting the law in a patent case. That is what causes all this mischief.” (Ungar v Sugg (1892) 9 RPC 113 at 117.)

  53. “I guess that’s why my clients are getting patents in >90% of cases without any appeals or RCEs. ”

    “my clients” LOLOLOLOLOLROFLMAOLOLOLO….Mooney gets a lot of first action allowances too – an infringer’s dream…[inhale]…OLOLOLOLOLOLOL

  54. Accidents are bound to happen and they can take place anytime at any place. Such is the case with slip and fall accidents. Sometimes, the injuries resulted from slip and fall accidents may look small but they may have a long term impact on you physically and financially.

  55. Professor Scott Kieff uses Dickens to argue against further layers of post-grant opposition procedures — writing that “[t]oday’s patent system already too closely resembles the burdensome and byzantine procedures described in Dickens’ A Poor Man’s Tale of a Patent.

    I guess that’s why my clients are getting patents in >90% of cases without any appeals or RCEs. Byzantine like an Interstate in Nebraska.

  56. Dickens is so awesome. Note that the cost of obtaining a patent has decreased handsomely in dollars of the day and is much easier now in terms of process. Yet, even so, inventors still have a negative outlook on the process.

    Oh and the interwebz delivered this unto mine hands whilst I didst read the above.

    link to video.answers.com

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