No Patents on Perpetual Motion Machines

In this house we obey the laws of thermodynamics!!!

It is always good to revisit the basic, core concepts to reconfirm that you have a firm grasp of the complex. This is true across endeavors. Great cooks sometimes need to remember how to boil an egg. Likewise, software designers sometimes create simple apps using the bare bones code base.

The same is true for patent law.  Recently on the internet, there was a discussion about a supposed "perpetual motion" machine developed by a German tinkerer. A brief article concerning the inventor is here.  One of the points being bandied about in the discussion of a supposedly limitless energy system was that "because it is not a perpetual motion machine, it can be patented".  This is a misinterpretation of U.S. Patent Law.

U.S. Patent law allows for the patenting of "everything under the sun, made by man".  This restriction means that naturally occurring items, as well as purely theoretical constructs are not patenable. For example E=MC2 is not a patentable formula, since it describes a fundamental property of physics. A practicable application of this equation, say a nuclear reactor, would be patentable.  However, recent US case law has held that any preemption of a natural law  that is, a patent that claims all the applications of E=MC2, is also not patentable.

The point here is that natural laws are not defined by Congress, or the Courts. Furthermore, natural laws and laws of nature are only rough approximations of how we believe the world to work.  These laws might be subject to boundary conditions and localized modifications given the right arrangement of energy inputs and conditions. As such, it is possible that the "laws of nature" that you can't patent today, will be different from the laws of nature you can't patent 100 years from now.

This is all to say that you could get a patent on a perpetual motion machine. Merely calling it a perpetual motion machine is not the problem in getting a patent. There is no rule that says per se perpetual-motion, Faster Than Light and teleportation devices are not patentable.

The difficulty is in demonstrating to the patent office that it works. This is called the enablement requirement. If you show up to the patent office with a patent application that describes the mechanism of action as a perpetual motion machine, then you are going to need some extraordinary evidence to back that claim up. If you show the world a device that apparently accepts no input but continued to do work, then you will get a patent, so long as others can reproduce your results. What you can't do, is claim on paper to have a device that goes against our current understanding of science and expect to be granted a patent.

 In fact that Patent Office does not even require you to advance a theory as to why the device works in the first place in order to get a patent. A patent is simply a contract between an inventor and some territorial organization (e.g. The United States of America or France). This agreement states, explicitly, that as the inventor of  a improvement in a technical field, you are granted a limited monopoly to make, use and sell that improvement. In exchange for this monopoly, granted and enforced by the government, you must disclose the invention to the public (i.e. the world) in sufficient detail such that any one skilled in that technology can make and use the invention without resorting to undue experimentation.

 If you have a perpetual motion machine, and you can satisfy this requirement, then you will get a patent on it. The underling laws of physics that you are bending breaking or modifying are of no consequence.

Swiss-style Basic Income and IP

To the ill-informed, "Basic Income" is a social security system in which the government regularly gives each citizen a sum of money — with no conditions. No questions asked, no obligations. 

There is a referendum in Switzerland, which if passed would give each adult resident the equivalent of 2750.00 dollars a month. You can read the proponents thoughts here.  In short, the theory is, without the necessity to obtain income necessary to live, people could make more resumed choices about their careers. They could made different choices about how they spend their time. As a result, you might have a more efficient economy. 

Obviously, there are people, including economists, who think this is a terrible idea. The argument against Basic Income is that the whole system will collapse in a morass of lack of motivation to actually work. People will move their expenses down to the level of the Basic Income and then forego employment. Opting instead, it is argued, to just sit around all day. 

I take no position on which one of these outcomes is likely (or the likeliness of this idea gaining traction in the US). Wikipedia has a good run-down on the pros and cons.  However, I do take a position on the economic outcome of people sitting around. I tend to lean on the side of "that's great". 

Why? Because people freed from the restraints of taking ANY job to make ends meet, will naturally gravitate towards their hobbies. When people focus a lot on their hobbies, they tend to turn those hobbies into occupations. We see that with the craft "everything" movement. A zest for baking becomes a bake shop, a thirst for brewing your own beer becomes a craft brewery. A love of reading has become self-published media empires (Ed. a bit close to home....).

Freeing everyone from the constraints of occupation would lead to some people just sitting around. It would also lead to an explosion of new businesses financed by the Basic Income. 

Some of these new businesses would create new works of intellectual property. New artistic, musical, literary works; new software platforms; new devices and new methods could all spring from Basic Income. These works could be licensed world-wide; generating taxable revenue to feed back into the Basic Income system. 

Many Venture Capital organizations have an "Entrepreneur in Chief" position - a person paid to basically think stuff up. We are constantly being told that America needs more "innovation" and "entrepreneurship" and that IP is a step in the wrong direction. Basic Income matched with IP might allow the America to realize the dream of being a "Start-up" Nation where everyone is paid to "think stuff up."

Product Design IP in the age of 3D Printers

Dieter Rams designed Coffee Maker

Intellectual property protection for industrial design and industrial designers has always been a fraught process. The nature IP does not lend itself easily to the tasks Industrial Designers might put to them. However, new technology might begin to change how Industrial Designers see Intellectual Property protection.

IP Limits

Conventionally, industrial design is protected through a design patent.  Design patents allows the designer to get protection on their purely ornamental design for 14 years from filing.  Unfortunately, this means that if the product has a functional component (enhanced ergonomics etc.) then the designer relinquishes that functionality, or they are forced to obtain the more expensive and time consuming utility patent. A utility patent covers the function of a device , process, compound or article of manufacturer. For example, a designer could hold a patent on the manufacture of a particular item. While this might successfully deter large scale copying, it does not prevent wide spread dissemination of the construction methods and processes.

Copyright protects artistic and literary works for 70 years, plus the life of the author. Text and audio-visual works are the primary focus of copyright. Once you move beyond the artistic realm into the functional, Courts have held that copyrights no longer apply.  However, the age of 3D printing might be about to change the rules of the game.

Charles Eames Design Patent 

3D Printing

For the uninitiated, a 3D printer is a device that builds an object, usually out of some resin, layers at a time. It is the electronic opposite of a very fine mandolin slicer. MakerBot, and companies like them are pioneering a way to have an "internet of things." The eventual goal would be a repository of templates for the production of all manner of goods, ready to be downloaded and printed, the way one might download a song and burn it to a CD [ed. do kids ever do that any more ?].

 The software used in 3D printers vary from device to device. However, they all use some form of stereolithography file to instruct the device on how to lay down layers of material. Once all the layers have been deposited, you should have a reasonable copy of object described by the file.

It should be apparent that 3D printing allows for the production of many useful things, it also allows for the re-production of industrial design elements without authorization from the original creators. Where 3D printing has created a problem, it might also offer a solution.

IP Incorporation into Designs



Since the procedures for manufacturing the item begins with a digital file. It is possible to encapsulate the design within the boundaries of Copyright law. If the software file, the instruction set for making a particular design is complete (that is, it does not require additional tooling, or minimal machining) then the software encapsulates the design.

It might still hold true that the tangible representation of the software (i.e. a chair or lamp) is not covered by copyright, the software code that executes the 3D printer is a valid piece of IP.  Therefore, the nexus of IP infringement of the design would occur when the digital file is copied (i.e. on a file share network). Thus, developing code for the 3D designs will become as important as the conceptual prototypes. Court are well positioned to hear arguments on the illicit trade and sale of pirated software. This presents an opportunity for Industrial designers and software coders to collaborate on clever implementations of the software to render the designs with minimal post processing. The closer the code is to representing the object, the stronger the case for infringement. Once the code base of a portfolio has been engineered, a simple licensing program [not in bitcoins!!!] (think Itunes) could offer people the world over the chance to download an use a particular firm's designs.

Alternatively, or additionally, a designer could include a structural trademark element. For instance, the design of a chair could,  incorporate a logo. In this instance, merely printing the object does not create a cause of action. However, once an unscrupulous manufacturer attempts to sell the copied design, they are engaged in trademark infringement.

There are likely more elegant solutions than these two for the potential problems posed by 3D printing. However, these solutions show that IP in 3D printing can be maintained and creators can be protected.

Jordan Garner

Why you had a hard time getting an IP job 2009

Not my children, but they raise an interesting point

There was [is] a misconception that "IP" people and especially "Patent" people land on their feet after a traumatic work event.

In most cases these traumatic work events are solitary affairs to be met with stoicism when they arrive, and laughed off once gainful employment is once again obtained.   Job loss, it should be noted,  is not uncommon. It is definitely not uncommon in late 20th / early 21st century America. In general this theory holds true, with a strong caveat concerning Bio-background patent prosecutors (a situation which I have addressed before). Engineering background IP practitioners have generally found it easy to obtain new employment.

However, at the tail end of 2008 and well into 2009 and beyond, there was a uncommon tightness in the IP employment market for all background. This tightness didn't comport with the conventional wisdom about IP.

Conventional wisdom held that IP slightly a-cyclical or even lightly counter-cyclical to the overall business market. If IP was influenced by the broader economy, it was the result of companies exploiting their IP to the full extent possible in a difficult market. This theory held that lots of new applications, litigation and diligence work would be generated in a mild downturn as people companies and organizations attempted to maximize license fees, infringement judgements and acquisitions.  Litigation and diligence can be the topic of a different post.

Here we take a look at the wisdom as applied to applications, and find it lacking.


source: http://www.theatlanticcities.com/jobs-and-economy/2013/10/where-americas-inventors-ara/7069/

As evidenced by the chart title, the above graphs the number of application filings by US inventors per year.  Instead of seeing a steady churn in work, we see an inflection point, then a steep and accelerating drop off until 2010.

What this chart shows is that "peak-application" (like peak-oil) hit sometime before anyone was actually aware a problem was brewing. As 2007 transitioned into 2008, the trend accelerated such that applications were approaching free-fall in by the end of 2008.

However, if people remember correctly, the Lehman Brothers Bankruptcy did not hit the news until September of 2008.  So this drop off was not the result of the economic collapse that erupted in the wake of Lehman, but was part of the systemic breakdown which caused it. While everyone was keeping their eyes glued to the "market", IP watchers should have been analyzing the IP "market".

The second chart below breaks this data out to the highest regional markets for patent applications.


As far back as 2005, there was a leveling off in the application filings. This would have been the point to consolidate and solidify staffing levels. Instead, 2007 saw some of the largest summer associate class sizes. New York suffered severely. From a pre-2007 height of  over 1,000,000 applications to a current number of just over 600,000; New York had seen a 50% reduction in filings. By 2011 the IP filing market was only 10-20 % off the lows.

A 50% reduction in patent work in New York means a lot less law firms getting paid, and a lots less associates on the firm's rosters.

What these two charts show is that triggering event for the Great Recession (Lehman Bankruptcy ) was not the triggering event for the decline in patent filings. The gears were already in motion back in 2006.  The reasons for the run up and crash are likely as varied as reasons for the crash in the broader market; over-supply, irrational belief that history always points upward, empire building at the cost of sustainability. Any, and likely all, of these factors played into the massive disruptions that gripped law firms in 2009-2010. (see Towsand, Morgan, Darby et al.)

Firms are not quick to innovate in the best of times. Facing a 50% drop in work load, billings, and profits is not the best of time. All of this conspired to make it difficult to get a job in the IP field in 2009. Thankfully, the broader market is slowly improving.

As the line representing new filings continues on its upward march, we would do well to keep a close eye on the movements and metrics of our own "market" s well as the broader market.

Terrors of the Patent Office [ Halloween Patents]

Nothing gets the inventive process moving like a commercial holiday. Unlike Christmas, Halloween lacks a committed religious lobby arguing that the festival has become too commercialized. Gaelic Druids, engaging in their Samhain Festivities, would probably be in awe of the variety and sophistication of modern creepy faced gourd lanterns. (a particularly creepy turnip Samhain lantern seen at left)

A quick search of the patent office provides several excellent updates of this apparently ancient tradition of making disturbing faces on otherwise inedible tubers. (Yes, I find turnips inedible...)

Everyone likes a menacingly happy Jack-O-Lantern. That's why, in 1907,  JC Tyndall of  St. Louis decided to file and get a patent (No. 848,938 on a "Toy Lantern"). Tyndall realized that the weak point of any Pumpkin light was the cap, and the susceptibility of the entire enterprise ending in a pumpkin scented conflagration. therefore, his pumpkin lantern includes a candle retainer, and an interlocking cap and gimbals mechanism for easy transport. the Specification does not detail why the eyebrows are so disturbingly curved.

In the continued vein of creepy faced pumpkin products, we move onto B. Wilmsen's particularly threatening Jack-O-Lantern patent issued in 1934. (No. 94,935 on a "Pumpkin Lantern").Tyndall had actually technology. Wilmsen make up for his lack of technical sophistication in this design patent with existential pumpkin-faced dread. His products nearly vertical optical orbs scream "infringe me if you dare!"

Lastly, we have an epileptic seizure inducing pumpkin Lantern. The psychedelic 1960's produced some interesting and mind altering experiences.  None of these hold an electronic candle to a double faced Janus-like Pumpkin invented by R.R. Authier of Oaks Bluff Mass and issued as Pat. No. 3,250,910. (Ed: Martha's vineyards for those who don't know).This specialty lantern has dual faces, one scary and one comical. In addition, it contains selectively operated light sources of differing colors. Lastly, these lights can blink or strobe, producing the red flashing eyes of a haunted monstrosity, in pumpkin form.


Always remember to check the patent office for particularly excellent holiday ideas.

Historical Patent Trolls: James Beaumont Neilson Edition

James, massive Troll and Fit model for Scrooge 

It is often argued, with copious amounts of digital ink, that patents are a net drain on innovation and our economy.

I tend to push back against this position, mainly out of enlightened self-interest.  I work in the IP field, if we did away with it at the whim of a subset of libertarian minded technocrats, I would have a hard time finding gainful employment. Or, at least a hard time finding employment which affords me the opportunity to opine on various sundry matters of a historical / philosophical sort. 

However, the impetus to push back against the characterization of this, or any time period, as a particularly unique moment in human history is fueled by those same historical pursuits.

The arguments against non-practicing entities (Trolls) stem from the proponent's perceived enlightened self-interest.  The core position of the patent detractor is a belief that the system as it stands (and has stood for 200 years) benefits the lazy at the expense of the industrious. The arguments are premised on a belief that the worker, the programmer, the system builder is innovating, advancing commerce and technology, creating jobs. In contrast, the dilettante inventor, the thinker, the small time experimenter with her one-off patent, is holding progress hostage to her insatiable appetite for licensing fees and royalty payments. Better, the argument goes, to scrap the patent system than for some to pay for technology which they use but do not place much value upon. 

This argument is usually presented in the context of software, as though the concept of non-practicing entities and expensive legal battles over the scope and value of patent rights came into being with the advent of the internet.

In fact, this exact line of thinking was espoused almost 200 years ago by an association of Iron works industrialists who were desperately seeking a way to avoid paying for technology leashed to "extortion-level" licensing fees.  

A brief aside regarding British ironworks in the 1820's. When one has spent all day acquiring iron ore from the heart of some lonely mountain and that same someone wishes to turn that iron into rail lines, rifles and other fine instruments of the Imperium, one needs to smelt the iron.  Traditionally, that was done by blowing (blast) cold air over coke (a purified form of coal that has been roasted) and iron inserted into this (blast) furnace. 

Enter Mr. James Beaumont Neilson. Neilson, manager and engineer of the Glasgow Gasworks, discovered that if you raise the temperature of the air you are injecting into the furnace ( to around 300F), you need far less coke.  Additionally, and most importantly, depending on the temperatures levels and coal type, you could switch from expensive fancy coke, to the normal everyday-get-a-lump-in-your-stocking coal as your fuel (something of which the British Isles had plenty). 

Neilson proceeded to obtain a series of patents in Great Britain, Scotland, and Ireland in 1828-29 on this hot blast technology.  Neilson then set about licensing this technology. By 1835, hot blast furnace technology was in every ironwork in Scotland, save one. The license fee was set at the low price of 1 pound per ton of iron produced. This licensing scheme was considered by Neilson to be of a low enough price that people would not circumvent the license and become wanton infringers.  

Neilson was wrong. Almost immediately, Scottish Iron Masters formed an association, which bound the members under penalty of 1000 pounds, to resist:

 "by every method which a majority should recommend, any practical acknowledgment of the validity of  Neilson's patent." 

At the same time, several English Ironmasters were making use of the hot blast technology while refusing to take out licenses.  Neilson eventually won judgments against the English Iron Masters, but spent the next 9 years battling the Sottish Association, Harford Coal, Household Coal, and finally Baird Ironworks.  

Baird initially took a license, determined later that it was 'extortion of the highest sort' and ceased payment. The resulting litigation, Neilson v. Baird, turned into a spectacle. The jury trial lasted 9 days, with more than 100 witnesses called. Estimated attorney costs were multiples of the typical costs for patent infringement in the mid-19th century.  The witnesses spanned the range from businessmen to what modern Patent litigators would classify as testifying experts on enablement, inventorship, validity and damages issues.

When the testimony was compiled, the full picture of Neilson's technology and the scope of infringement was painted. In the 10 years that Baird used the hot furnace they has seen an increase in net profits of more than 260,000 pounds  (more than approx 180,000,000 in USD). The jury sided with Neilson and awarded damages of 11,000 pounds, roughly 10 million dollars in modern sums. He had asked for 20,000 pounds). 

According to modern interpretations, Neilson was a troll of the highest order. He never once claimed to be in the business of iron smelting, only in the allied field of gas works. He had a broad based licensing program that went, sometimes aggressively, after an entire industry. Lastly, he was not shy about litigating his patents and seeking damages from those he accused of infringement.

However, Neilson is widely considered a celebrated inventor, the father of the Hot Blast Furnace, and major contributor to the industrial revolution. If one seeks to modify the patent system, one must account for the Neilsons as well as the standard trolls. What separates their actions in the minds of the public? What anti-patent troll statute would have allowed Neilson to prevail, while barring those egregious abusers of the patent system? I am not sure I have seen a good answer. 

Jordan Garner

  

Infringement frequency pushback

As a quick post, the following chart is presented from Google's fantastic Ngram viewer.

First, a bit of information regarding Ngram. The viewer is one of those Google 20% projects (i.e. not a core google product) that came out of the Google's massive data trove generated when it optically scanned libraries worth of print books. This scanning was itself not without controversy. See here.

The viewer allows you to search for the frequency of a word, or phrase, and see how that phrase has changed over time.  This allows for hours spent traveling down the internet time sink looking for interesting word / data combinations.

However, I think (and IP nerds agree) that the interesting output is related to the frequency of IP terms in written english. A look at the graph above demonstrates that for all the recent talk about Patents being a drain on industry, the frequency of discussion has remained relatively flat since the 1800s. Time bias being what it is, you see a peak in the late 1940's (probably a combination of medical advances and post WWII electronic / solid state electronic development.) and then a precipitous drop off to a nadir in the 1970's.  For 30 something developers or businessmen, it looks like there has been a terrible rise in patent usage.  However, even in 2009, with Trolls in full swing, the rate of  the usage of patent terms has yet to return to the nominal historical average.

More interesting, copyrights, long the bane of innovators, has been on a steady historical march, with no signs of slowing.

What is slowing is the march of IP infringement references.
     In the above chart, the concept of a "trade secret" seams to occur far more than any of the traditional Federal IP rights. There appears to be a high burst in the mid-80s to the 2000. (Potentially the rise of Japan and China? Topics for another day).

Patent, copyright and trademark infringement references hit their peak in 2000 and have been decreasing ever since.

It should be noted that these are references to the specific terms in published works. It does not include online media (which might be siphoning off the results post 2000)).  However, it would be odd, and a post in its own right to not have some correlation to the prevalence of a term in print and its prevalence in all media.

Anyone who is selling the concept that IP rights, their enforcement, or position in the mind-space of our society needs to justify those claims in light of the charts above.