The Tom Bearden



From: "Tom Bearden" 
To: "Tony Craddock" <>
Date: Mon, 5 Mar 2001 17:09:24 -0600


Don't know if a "news" part is appropriate on, but there is one thing I ran across that involves an unheralded and dramatic change to all U.S. patent laws, that desperately needs calling to the public attention.  The article is Jason B. Meyer, "Law and Order", Smart Business Magazine Ziff Davis, Apr. 2001, p. 86-87.  I refer to item 1, "Festo -- 'Sauce' for the Golden Goose."

This one is really worth shouting from the rooftops about.  What it means is this: in filing a patent, if you have done ANY changing of claims, adjustment of them, etc. in your negotiations and filing process with the examiners -- any changing at all in the claims section --  you have now just about effectively lost your patent and your patent rights.  In short, now you cannot prevent infringement if the infringing corporation changes one single thing, even the smallest.

The U.S. Circuit Court of Appeals for the Federal Circuit is the one which rules on all patent law appeals.  In this case where the new ruling was issued in November 2000, Festo had patented a type of piston with two sealing seals on one end.  Its competitors were apparently building and selling that piston with only one seal on one end.  Festo sued, and the new ruling was issued.  In effect, so the new ruling states, if the competition changes anything at all, it can proceed to build and market the invention, IF you did any changing whatsoever in your claims write-ups while you were in your entire patenting process, negotiations with the patent examiners and the patent office, etc. -- even if the patent examiners themselves required the change.

In short, if anything was changed, the issued patent claims are NOW literally not worth the paper they are written on.  In short, the American inventor has been had and had in spades.

The ruling -- which is now a vast new patent law already in effect unless an appeal to the U.S. Supreme Court later reverses it -- reverses the former long-established legal stance that your patent protects you against anything close to it, and a competition device has to be substantially different from your patent or else it is infringing upon your patent rights.  Now that's all gone.  Vanished like a snowflake on a hot summer day.

The new law means the following (quoting from the article): "If during the process of applying for a patent you change your claims, close will not count.  You'll have protection against so-called 'literal' infringement -- someone selling or using an exact copy of your invention -- but that's it."

Note that this largely invalidates most of the 1.2 million patents in force in the U.S., as pointed out by Meyer in his article.

Now, if applying for a patent, the inventor must fight tooth and nail in his negotiations with the patent examiners and patent .  He must NOT change his claims at all, under ANY circumstances. Not one iota.  Otherwise, legally he "apparently did not have a clear and complete understanding of what he was claiming," and -- for, say, a patented shoe -- changing a shoestring allows his  patented shoes to be freely built and sold by his competitors at will. An example was given in the article, quoting Circuit Judge Paul Michel on the Federal Circuit.  Judge Michel dissented from the ruling, and his succinct statement was as follows:  "The new rule means that you can get around a biotech patent that was amended during the application process just by changing one lousy amino acid in a long, long protein string."  In short, change a thousandth of it, and you're free to pirate it on a grand scale.

In our struggling "new energy" field, it would mean someone  changes a single coil a little bit, and IF YOU ENGAGED IN CHANGING OR ADJUSTING ANY OF YOUR CLAIMS IN YOUR PATENT NEGOTIATIONS OR PROCESS, ANY CHANGE AT ALL, THAT IS SUFFICIENT TO ALLOW YOUR PATENT TO BE RIPPED OFF WHOLESALE!   You might as well not even have filed the patent and gone to all that expense and trouble, for as of November 2000 you now have essentially no patent protection at all.

Festo's attorneys will be appealing to the Supreme Court.  Let us hope that reason prevails at that level.

Otherwise, the U.S. courts have just effectively ripped off almost all the 1.2 million patent holders, dramatically changed the patent rules after the fact without any grandfathering allowed, and dealt a death blow to the U.S. patent process as we know it.

This obviously means the rather immediate and total destruction of the small U.S. inventor.  All a large and powerful company would have to do would be to enter a protest on any or all his patents.  If the inventor changed anything in his claims anywhere in the entire painful patenting process, his patent is now not worth the paper it's issued upon, since up to now the patent process has been a notorious "give and take" exchange process between the inventor and his attorneys and the patent examiners and the U.S. Patent Office and most of them (almost all of them) have had one change or another made during that process.

In other words, if you played the patent game according to the federal rules and the requirements of the U.S. patent office, you've probably just lost everything you sweat blood and tears over, all your investment in time and money, and essentially all your intellectual property rights in your "invention that was modified a little bit during negotiations at the insistence of the U.S. patent office and patent examiners".

The sheer inanity of the ruling defies all logic and common sense. Nevertheless, as of this moment that is the law of the land, unless our legislators or the U.S. Supreme court do something.  If they don't, then patents and the patent process as we have known them are finished -- along with the small inventor.

Contrast this total insanity to the intellectual property rights one enjoys as an author.  If I write a book, I can copyright it for $10 or so.  The copyright is absolutely good for my life plus 50 years.  I've been a songwriter, an author, and an inventor -- and let me tell you, the inventing is the hardest by orders of magnitude.  It is also usually the most expensive, time-consuming, and least rewarding.

I guess the U.S. Circuit Court of Appeals for the Federal Circuit just finally decided to completely destroy the bothersome small inventors and be done with it. As the old saying goes, with friends like these, who the whackus needs enemies!

Best wishes,

Tom Bearden