Odd descriptions of matter and the peculiar turn of phrase abound in the chemical patent literature. Here are just a few of my favorites (italics mine)-
- “… wherein the substituents have the following significations:”
- ionic layered compositions (translation- clay)
- Donor solvents (translation- certainly an ether, perhaps an ester)
- A non-coordinating dispersant (translation- a hydrocarbon solvent)
The deal with the devil that you make in getting a patent is this- in exchange for a 20 year monopoly, you must disclose to the public enough enabling information that a confused citizen could determine if he/she is infringing on the patent and reasonably avoid infringement. But this does not stop the use of opaque vocabulary and unusual juxtapositions because, after all, one skilled in the art should be able to decode the many obfuscations applied to their area of specialty. Shouldn’t they…? Or, perhaps the obtuse vocabulary is meant to daze and confuse the judge and jury. Hmmm.
Lamentations on Chemistry 
It is a fundamental principle of patent law that an inventor may be his own lexicographer. The vocabulary used in the claims defines the invention. Even standard terms can be modified without limitation so long as the inventor is clear, or definite in his meaning.
i.e. – “Cyclic alkanes containing sulfur will be referred to as Gauss’s goodies.”
Terms used in the claims must find a defined precedent in the specification or they will be interpreted according to what one of ordinary skill in the art would find reasonable. What constitutes reasonable or who is even considered one of ordinary skill (BS, MS, PhD? Window-washer?) is often the subject of messy litigation post patent grant.
So define all terms without exception in the specification. In essence the odd terms you’ve cited are forcing you to read the specification to see what the inventor really means.
Good points- I’m glad you mentioned them. I was being just a little glib.
The Myth that Patents are a Monopoly
A patent gives the holder the right to exclude others from making, using or selling their invention. 35 USC 154. It does not give the holder the right to make, use or sell their invention. A monopoly is an exclusive right to a market, such as an electric utility company. An electric utility company has the exclusive right to sell electricity in a certain territory. Since a patent does not even given the holder the right to sell their invention, let alone an exclusive right to a market, it is clearly not a monopoly.
When a person describes a patent as a monopoly to be consistent they should also state that they have a monopoly over their car or over their house. In fact, they have more rights in their car and house than a patent gives the inventor over their invention, since you have a right to use and sell your car or house. A patent does not give these rights to an inventor over his invention. All invention are built upon existing elements (conservation of matter) and if the elements that the invention uses are patented, then the inventor will not have the right to sell their invention without a license.
Some economists argue that a patent is designed to give the holder monopoly power. Those economists who are consistent also state that all property rights give some monopoly power. The property rights are monopolies thesis shows how confused economic thought is on this subject. The only logically consistent definition of a monopoly is an exclusive right to a market.
People who suggest a patent is a monopoly are not being intellectually honest and perpetuating a myth to advance a political agenda.
For more information on patents and innovation see http://www.hallingblog.com.
“People who suggest a patent is a monopoly are not being intellectually honest and perpetuating a myth to advance a political agenda.”
Gosh Dale, I’ll have to disagree with you a bit here. First, in regard to the question of political agenda, I think your analysis is over-wrought on this matter. What political outcome or leverage could possibly arise from having a political agenda with such a precise definition of patent monopolies? I think you are being a bit of a purist.
And when you say “intellectually honest”, couldn’t you substitute “precise”? Must one always presume malice? Couldn’t it be mere incompetence?
I analyze IP for a living and I am fully aware of the length and breadth of the rights attached to the assignee of a patent. I can think of several patent families (in my field) that are so fundamental in their scope that methods and materials outside of their claims are not presently economically feasible for entry to the respective markets. This has the effect of rendering the patent family a tool of monopoly in a market subsector. Dammit!! I wish I’d thought of it. I would do the very same thing.
In the theoretical sense you may be right, but out in the trenches where push comes to shove, people have to make actual decisions of go/no go when confronted by a blocking patent. Sometimes the decision is to stay out of a particular market area.
“In fact, they have more rights in their car and house than a patent gives the inventor over their invention, since you have a right to use and sell your car or house. A patent does not give these rights to an inventor over his invention.”
Excuse me? Doesn’t a patent give the assignee, not the inventor, the exclusive right to use what is claimed? I don’t understand the point you are trying to make.
A patent real world awards the holder the right to seek civil remedy and compensation for claimed infringement. It also empowers those who guard our borders to exclude foreign goods manufactured through litigated infringement of patent protection. Riiight. Go piss up a rope if you are not a corporation. It is cheaper to steal than to create or license if the patent holder can be crushed by the costs of contest.
Uncle Al finessed a constellation of co-polymerizable UV absorber patents by inventing a UV-absorbing polymerization *inhibitor*. We needed MW-control. It terminated the chain by addition. If management had been just that little bit smarter it would have filed a patent in turn instead of running with near-term cheap gain.
Excuse me? Doesn’t a patent give the assignee, not the inventor, the exclusive right to use what is claimed?”
A patent does not give the patent owner any legal right to practice the invention. It awards him the right to exclude others from practicing the invention.
Sigh.
ionic layered compositions (translation- clay)
Zirconium phosphonates bearing pendant ionic subsitutents are not clays, nor are high temp ceramic supercons, mica, graphite oxide, multilayered CVD composites, or conceivably MgB2 plus reactive silanes (e.g., bearing a quaternized nitrogen) to exfoliate the solid. One goal of seemingly obtuse nomenclature is to broadly exclude footnote clevernesses like using h-BN in face powder compositions instead of smectite clays.
OTOH, if any Bentone patents are still in force, attack! If not, attack! Such art is then out of patent protection and its inclusion is obvious, or not. Of such is litigation nourished.
I’ve long suspected that the reason for choosing non-standard terms is to make it more likely that the patent will not show up in subsequent searches, thereby leading ot infringement. Back in the 90’s, Dow used the term “interpolymer” quite often in their patents, a term I had never heard of. When I discovered that they merely meant “copolymer”, then I realized what was going on. I can’t imagine another reason for using such odd language.
That is a good point.