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_posts/2024/jun/2024-06-09-patent-claim.md

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+---
+layout: post
+title: "What Is a Patent Claim?"
+date: 2024-06-09
+place: Moscow, Russia
+tags: business
+description: |
+  If you are a programer, then even if a lawyer may help you write
+  a patent application, your job is to prepare a proper
+  patent claim, making its breadth right on.
+keywords:
+  - patent claim
+  - patent breadth
+  - patent length
+  - patent infrigement
+  - patent litigation
+image: /images/2024/06/and-justice-for-all.jpg
+jb_picture:
+  caption: And Justice for All (1979) by Norman Jewison
+---
+
+If you, like me, are not a patent attorney and don't understand patent law,
+but your boss asks you to turn your recently written piece of code into
+a patent, read on. The boss most probably won't ask you to write the entire
+patent. Instead, he will ask you to prepare a quick summary of the invention
+(usually, a few slides) and then a hired lawyer will turn it into
+a full-scale patent application. If you understand the purpose of patents,
+the mechanics of patent offices, and the format of a patent claim, you will
+do just fine.
+
+<!--more-->
+
+{% jb_picture_body %}
+
+**What are patents for?**
+Initially invented as a tool to encourage innocent inventors,
+they are currently used mostly as a [weapon](https://en.wikipedia.org/wiki/Patent_war)
+either to bully larger organizations or
+to defend them against bullying. It all started in Italy in 1474,
+when a three-year "grant" [was given](https://guides.slv.vic.gov.au/patents/history)
+to Filippo Brunelleschi for "some machine or kind of ship,"
+for a period of three years. Since then, [over 3.5 million patents](https://www.wipo.int/en/ipfactsandfigures/patents)
+have been issued by different _patent offices_ around the globe to respected
+inventors.
+
+**Who is a [patent office](https://en.wikipedia.org/wiki/Patent_office)?**
+It's a security organization funded by a government:
+[USPTO](https://www.uspto.gov/) in the United States,
+[EPO](https://www.epo.org/en) in the European Union,
+[CNIPA](https://english.cnipa.gov.cn/) in China,
+[Rospatent](https://rospatent.gov.ru/en) in Russia,
+[IPOS](https://www.ipos.gov.sg/) in Singapore,
+and a [few dozen](https://en.wikipedia.org/wiki/Patent_office) in other countries.
+Also, there is
+[WIPO](https://www.wipo.int/portal/en/index.html) in Geneva (Switzerland) that
+coordinates the work of all other POs, so far.
+They protect you if you pay them (no surprise it all started in Italy!)
+
+Let's say you invent a new file compression algorithm and
+you don't want anyone to use it without your permission. First, you pay
+[$320](https://www.uspto.gov/learning-and-resources/fees-and-payment/uspto-fee-schedule)
+to USPTO and submit an application. Then, in a few months, they assign your application
+a number and call it "pending." Then, you wait for about [3.5 years](https://www.uspto.gov/dashboard/patents/pendency.html)
+until they reply back with a decision: either you get a patent, you get nothing,
+or they ask you to refine the application (most common case).
+You make the changes, resubmit, they criticize, you resubmit, ... and eventually
+they issue a patent.
+
+**Now what?**
+Your company publishes a press release, informs all investors, you
+make a Facebook post so that your mom can be proud of you,
+and in a few days everybody forgets about it. Because nobody cares. Until
+the _litigation_ day comes: your company finds out that another company is
+also compressing files using the same algorithm. Or, the other way around:
+they find out that the algorithm you invented is actually the algorithm they
+have been quietly using for years. You both meet in a
+[patent court](https://en.wikipedia.org/wiki/Patent_court).
+The USPTO will be there too, since you paid them earlier.
+
+If your opponent _does not_ have a patent, the judge will ask them to prove
+that their compression algorithm was publicly available prior to your
+application. If they provide such proof, your patent will be
+[_infringed_](https://en.wikipedia.org/wiki/Patent_infringement)---you will lose
+it, your $320 won't be refunded, and you will pay everything you made over the last
+few years to the opponent.
+
+If your opponent _does_ have a patent, you will have to prove that your
+patent is older and _broader_. USPTO attorneys most probably won't try to help you,
+since they won't be on your side, but simply a mediator between both of you
+([Apple vs. Samsung](https://en.wikipedia.org/wiki/Apple_Inc._v._Samsung_Electronics_Co.)
+litigation is a good example of such a patent war). If you win,
+their patent will be infringed and you will get all the profit they managed
+to collect over the last years. Big win!
+
+**What is patent breadth?**
+First, let's discuss what is its _length_. You may be surprised,
+but patents have pretty short lifetimes.
+If you don't extend a patent, it will expire in just _three years_. If you do want to
+extend it, you must pay USPTO [again](https://www.uspto.gov/patents/basics/manage)
+and much more than you paid the first time:
+[$2,000](https://www.uspto.gov/patents/basics/manage) in 3 years,
+$3,760 in 7 years,
+$7,700 in 11 years.
+Not cheap, huh?
+
+Now, the breadth. Consider two _patent claims_:
+
+* "An apparatus comprising a file reader; a file writer; and a compressor."
+* "A file compressing method comprising
+  a reader of JPEG files;
+  a probability distribution calculator;
+  a discrete transformer;
+  a bla-bla-bla optimizer;
+  an intermediate storage;
+  a writer of JPEG files."
+
+The first claim is much broader: it probably covers all possible file compressing
+software tools ever created. Such a broad patent claim won't even be
+[accepted](https://en.wikipedia.org/wiki/Patentability)
+by USPTO if you file it. They will do a quick search of _prior art_ (other
+patents previously issued) and reject you on the basis of a lack of
+[_novelty_](https://en.wikipedia.org/wiki/Novelty_%28patent%29).
+
+**How to write a good patent claim?**
+There is no such thing as an objectively [good claim](https://support.lens.org/knowledge-base/what-are-claims/),
+since it depends on the
+situation in the market. If the territory of innovation is not yet developed
+and you are a pioneer, a broader and shorter (by the length in years, not the
+number of words) patent is better. If you are making a small improvement
+to a well-developed prior art, better make the patent narrower and longer.
+
+A _patent claim_ is the key element of a patent application. While the rest
+of the document may be written by a patent attorney, I strongly suggest
+you write the claim. At least its first version.
+There is a more or less strict structure of a claim:
+preamble, transitional phrase, and body:
+
+| 1) Preamble | 2) Transitional Phrase | 3) Body |
+| --- | --- | --- |
+| An apparatus | comprising | a file reader; a file writer; and a compressor. |
+| A file compressing method | comprising | a reader of JPEG files; a probability distribution calculator; a discrete transformer; a bla-bla-bla optimizer; an intermediate storage; a writer of JPEG files. |
+
+The [preamble](https://www.wilmerhale.com/insights/publications/patent-claim-preambles-july-16-2003)
+must position your invention among all other devices
+and methods in the prior art. The "an apparatus" preamble is very broad:
+it could mean any device in the world, even not only
+from the computing domain. The "a file compressing method" preamble
+is much narrower.
+
+The body of a [patent claim](https://ocpatentlawyer.com/basics-writing-claim-patent-application/)
+must iterate the elements that constitute
+the invention. The fewer elements you include in this list, the broader
+the patent will be. The broader the patent, the easier to infringe. Well, unless
+you invent something revolutionary new. On the other hand, the more elements,
+the narrower the patent, the weaker it is as a weapon. It will be very hard
+to use a narrow patent in a patent litigation.
+
+The claim must also be [_non-obvious_](https://en.wikipedia.org/wiki/Inventive_step_and_non-obviousness),
+meaning that your invention has to be
+an adequate distance beyond or above the state of the art. Say, a new file
+format is invented for graphic images and you submit a patent application
+for a ZIP compressor that can also compress files in this new format.
+If there is no novelty in the compression algorithm itself, such a patent
+would be considered obvious since it's not far away from prior art: existing
+ZIP compressors can deal with this file format, even though they don't know
+about it yet.
+
+**How do you decide?**
+It is your responsibility as a patent author to decide how broad
+and how long your patent must be. Then, a patent attorney will help you turn your
+patent claim into a patent application (charging a
+[few thousand dollars](https://patentattorneyworldwide.com/us/much-patent-attorney-us-charges-stage-getting-patent/)
+along the way), and then, hopefully, the litigation day will come and you will win
+a lot of money. Most probably this will never happen and the patent will
+remain a nice badge on your CV and your company's website.
+
+By the way, it is important to remember that if you want to get similar protection
+in another country, you will have to pay their patent office separately.
+Just like you pay every time a different mafia boss for protection when
+you want to work in the territories they control.

static/research.md

@@ -41,6 +41,7 @@ they are all related to [EOLANG](https://www.eolang.org).
 You may also pick one of our open source projects, and extend it with
 a new feature, presenting this work as engineering+science:
 
+  * [eo](https://github.com/objectionary/eo) (Java)
   * [cam](https://github.com/yegor256/cam) (Bash, Python)
   * [rultor](https://github.com/yegor256/rultor) (Java, Docker, AWS, XSL)
   * [qulice](https://github.com/yegor256/qulice) (Java, AST, XML)