Obfuscation and Patenting of @#$%

by Dennis Crouch

Profs. Sarah R. Wasserman Rajec and Andrew Gilden recently posted a draft of their new article “Patenting Pleasure.”  If you cannot discern the topic from their title, Prof Nicholson Price has also just published a review essay titled Illegal Sex Toy Patents. Price describes the “central tension” from the article:

Because of the utility doctrine, patentees must say what their inventions are for—but because US law has been generally quite hostile to sex and sex tech, pleasure patents have to say they are for something other than, well, pleasure. In the heart of the piece, Rajec and Gilden carefully catalog these descriptions over time, revealing a changing picture about what sorts of purposes were considered acceptable sex tech—at least, in the eyes of the USPTO.

Price.  Some amount of obfuscation will be familiar to patent attorneys today across various fields.  Although not illegal, most patents avoid detailing the core invention — what really is the improvement over the prior art.  Likewise, some patent attorneys will have walked the tight-line between the patentability disclosure requirement and client-interest in keeping certain trade secrets.  Some patent attorneys are hard at work attempting to beat the PTO’s AI system that routes patent applications to the various art units (some of which are seen as more favorable than others).  Many are also trying to figure out ways to patent inventions that are close to the abstract-idea line without sending the case back to the inventors for more inventing.  Perhaps all of this goes along with traditional core roles of attorneys — advocating and keeping secrets.

In any event, Rajec-Gilden do not include any of the patent drawings and should be safe for reading on the train.

 

9 thoughts on “Obfuscation and Patenting of @#$%

  1. 3

    “Rajec-Gilden do not include any of the patent drawings”

    And yet, isn’t a picture worth a thousand words?

    Jus’ sayin.’

  2. 2

    This sounds like the PATRIARCHY at work.

    #patriarchy

    1. 2.1

      You almost sound like MaxDrei here, tossing feces against the vertical structure to evaluate the friction coefficients.

      1. 2.1.1

        Absolutely not anon, as you know the sax toy industry is mainly women centered because that’s who buys the toys mostly. With the patent system rigged against patenting and innovation in this field that must be a patriarchial oppression somehow.

  3. 1

    Clearly a tangent, but I wonder if MaxDrei has been following along the Chinese patent authority efforts to clamp down on a different form of @#$%: filings that do not appear to be legitimate attempts at obtaining real innovation coverage.

    This ties into the ongoing discussion of ‘worth’ – and when an item becomes ‘of worth’ – for science fiction, and the related (rebuttable) presumption that actual patents have (and that mere published patent applications that are not actually vetted as are granted patents also obtain to a degree).

    1. 1.1

      No, sorry anon, I haven’t been following what the authorities in China are doing but I was struck by what Dennis wrote above, namely:

      “….most patents avoid detailing the core invention…..”

      My perception too. But ONLY for cases drafted in and for the USA. What constitutes “detailing” is one thing in the USA, but quite another elsewhere.

      In the First to File rest of the world, US-style obfuscation is a recipe for disaster, by which I mean 18 month A publishing the invention yet failing to secure for it any enforceable exclusive rights of commensurate or adequate scope.

      With every increase in the economic importance of “World other than USA” relative to that of “USA” the likelihood of a malpractice suit against the patent attorney drafter increases.

      1. 1.1.1

        the likelihood of a malpractice suit against the patent attorney drafter increases.

        yeah, NO.

        That is not to say that for cases that we (in the Royal We sense) in the US know that we will also be filing abroad that we only apply our US writing style. Typically, what we have done in our firm is to employ European counsel to augment and adapt a US case for prosecution in a different Sovereign, under the different rules of the different Sovereigns.

        I do grant this may NOT be a universal aspect – and certainly, Non-US items are ALSO (often) shall we say, “not fully adapted.”

        1. 1.1.1.1

          Well that was unexpected, that typically clients will pay for a review and edit by European counsel of a specification destined for filing under the PCT. I wonder, does that process ever “work both ways” to inspire or prompt any revision of the non-pro text destined for filing at the USPTO? Given the multiple oppositions now pending at the EPO on the hugely valuable CRISPR technology, I wonder whether those cases were reviewed by non-USA counsel prior to international filing.

          I don’t doubt for a moment, of course, that the reverse applies with equal force, that those who draft outside the USA and want a high value patent in the USA should get the text reviewed by US counsel prior to filing PCT.

          1. 1.1.1.1.1

            Good questions – as we are primary to our clients (mostly only US based), I would leave it to others that have direct experience as secondaries to Foreign based inventive entities acting as the US expert.

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