Comment by btrettel | Hacker News Reader

Comment by btrettel | Hacker News Reader

Former patent examiner here. One problem I've seen time and time again with respect to patents on Hacker News is that people don't read the patent claims, the legally enforceable part of a patent. They just assume that because some journalist or blogger or attorney or whatnot says that this patent covers something, it must cover all instances of that. And that would be a big problem, preventing people from using a technology that should be available to the public. But the reality often is that what the patent covers is quite narrow. Yes, mistakes happen in granting patents, but not as frequently as people here seem to think.

Example of this phenomena on HN: https://news.ycombinator.com/item?id=30387833

The claims there don't cover as much as people think they do! https://news.ycombinator.com/item?id=30388857

While I've never been involved on the litigation side of patents, if I received an email like this, I'd ask for not only the patent numbers but also a detailed "mapping" of how my product is infringing. The mapping is what I had to do as a patent examiner. Just show how my product infringes on the claims. That's what would have to be done in court, after all.

If they claim

    A widget consisting of 3 bars.

and my product has 4 bars [0] then I'm not infringing!

[0] "Consisting of" in patents means exactly. If they said "comprising" then 4 bars would infringe as they could point to any 3 of the 4. You need to know a little legalese, sure, but it's not hard.

Can you recommend a good reference/source for translating legalese? I'm not sure I've ever found a good source for determining which words should be interpreted normally and which are landmines.

The ambiguity about what words mean may be part of why people assume patents are so broad. Most people know that some words and phrases, when used in a legal context, have vastly different (more specific, broader, or even completely disconnected) meanings than what you'd expect in normal writing or speech. Without knowing what those are, the safe approach is to ascribe the least favorable possible meaning to every word. "Does language X mean Y" becomes "could language X possibly be interpreted by someone who doesn't understand the material to kinda vaguely reference Y," and you get the type of broad assumptions you're lamenting here.

The real answer is three years of law school plus a couple of years of work in the relevant field.

If you want a taste of what it involves, for patent law, here is one of the seminal cases on how to construe claim terms, Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005):

https://scholar.google.com/scholar_case?case=220719574132079...

For an accessible introduction to patent legalese, I'd recommend taking a look at a recent edition of the book Patent It Yourself by David Pressman. I can't say it'll cover all that I learned as an examiner, but it's well written and covers a lot.

Also: A lot of the legalese I encountered as a patent examiner was "lexicographic definitions", that is, where a patent applicant writes somewhere in the patent specifications that a certain term or phrase has a particular meaning. Applicants didn't always make those easy to find... I recall one where (as I recall) they defined "insulation" to including something that can cool something down, which strikes me as simply wrong and confusing. That definition was basically hidden right in the middle of the patent application. It was necessary to find that definition to understand the claims. If the term is something I hadn't seen before then I would have just search for it, but for something common in the field I examined like "insulation", I wouldn't normally search for that. This is really annoying and unfortunately okay under USPTO rules.

I think we all know that the patents (especially software patents) are often overly broad and won't stand up to scrutiny but us poor pissants won't be able to pay more than a month or two of lawyer fees before we lose our homes and maybe even our families. I mean it's a big row to hoe.

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