What is a patent

[Photo Engineer]

IDK where else to put this....

In messages to me personally or in posts on APUG and PE, several people have commented on patents and how useful or useless they are. Some asked what is a Research Disclosure. Others wanted to know how to get one or the other as an inventor. So, I thought I would write something up for APUGgers who might be intereseted in how it is done at EK.

Every month we write a Periodic Report (my 32 years x 12 = LOTS of these things)

Every quarter, we write a Quarterly Report (32 x 4)

Every time a milestone is passed we write a Technical Report (Number of major milestones = number of reports)

All of the above may be written alone or with project members as co-authors with editorship rotating.

When something noteworthy came up, we wrote an Idea Memorandum (I had about 100). These can be alone or with co-workers. You get an award and seed money for Ideas that pass a review board. One of mine got seed money for R&D once.

When an IM looks promising, it becomes an Invention Report (alone or with other co-inventors). I had about 40 of these.

When an IR looks good the inventors are asked to research the literature for prior art and then begin working with an attorney in the legal department to see if it is Patentable. If so, the inventor(s) begin working with an attorney to write up the application and make the examples that will have to be presented to the patent office as proof. (they don't just take your word). I got some patents from the IRs above.

If the IR looks good, but is not deemed patentable, or if Kodak was not interested in pursuing it as a product, they publish a Research Disclosure which bars everyone else from patenting it, but not from using it. I had some of these too.

At Kodak, there are two major patent milestones. One is at 20 when you get your name and picture mounted on the 'wall of fame' in the Research Labs. One is at 50 patents. You get a cash reward over the normal $1 and 'valuable consideration' given by the company.

So, at this point we have a patent....

What is it? It is a document meant to explain "To one skilled in the art" how to repeat the invention. Therefore, to one unskilled in the art, the patent may appear wrong, misleading or otherwise useless. In fact, I have seen one person here on APUG describe most patents as being useless. It probably stems from the fundamental definition of a patent. A photographic systems patent need only make sense to a photographic engineer, no more, no less.

An emulsion patent need make sense to an emulsion engineer and to some extent the photographic engineer. Being a chemist and/or a physicist will help somewhat.

A patent must NOT be misleading in any way to one skilled in the art, but need not be the final form of the product sold using that patent. The product must hold only to the letter of the claims which may be for an aldehyde of from 2 to 200 carbon atoms, with a preferred range of 4 to 100. It may state a concentration range of 0.2 g/l to 200 g/l and a preferred range of 1 g/l to 100 g/l, and a pH from 4 - 8.

It does not have to say what the actual chemical is, what its concentration is, what the pH is, nor does it require a statement of all of the other ingredients. And so where some ingredients are concerned it may simply say "a chlorobromide emulsion such as is known to one skilled in the art was used" and "addenda for stabilzing and hardeing" such as known to one skilled in the art were used.

In this manner, Kodak, Ilford and Fuji can produce B&W products that work but have totally different chemistry and formulas, but we understand the work each of us do because we are "skilled in the art".

So, patents are useful and are very meaningful. Don't give up if you are reading them. You gain skill in the art by being a photographer and by reading the patent literature. Don't be intimidated by them.

By doing this, you could re-create Microdol X for yourself or re-create one of the old time B&W papers for yourself. Both are out there in patents. So are the formulas for RA-4, C41 and E-6.

PE

 

[Craig]

IDK where else to put this....

In messages to me personally or in posts on APUG and PE, several people have commented on patents and how useful or useless they are.

As a former Patent Agent, I'll add a few comments. All patents look useless to those not familiar with them, but like any technical document you have to understand what you're reading. Patents are written in a highly structered and formalized way, and each section is the way it is for a reason. Particularly in the claims each word carries a meaning, and is carefully thought out.

I could write a claim phrased two different ways that in ordinary English would be interchangable and mean the same thing, yet in patent language would mean completely opposite things. I remember a court case that hinged on the placement of a comma because on one side of a word it included what followed, and on the otherside it excluded what followed.

The Canadian Patent office has a very good guide to patents, that answers many of the questions that people new to patents ask:
http://strategis.ic.gc.ca/sc_mrksv/cipo/patents/pat_gd_main-e.html

The rules are different for each country, but most countries have some general rules that are common. The US is the oddball in this case, their rules are completely different to the rest of the world. Slowly the US is starting to come into line, but there is a lot of resistance from various lobby groups

 

[Photo Engineer]

Very good comment Craig. Thanks and of course you are right.

I should have added that I'll do my best to help anyone with problems reading patents, but will not disclose trade secrets nor the actual embodiment.

PE

 

[eddym]

IDK where else to put this....

....................
So, at this point we have a patent....

What is it? It is a document meant to explain "To one skilled in the art" how to repeat the invention. Therefore, to one unskilled in the art, the patent may appear wrong, misleading or otherwise useless. In fact, I have seen one person here on APUG describe most patents as being useless. It probably stems from the fundamental definition of a patent. A photographic systems patent need only make sense to a photographic engineer, no more, no less.

An emulsion patent need make sense to an emulsion engineer and to some extent the photographic engineer. Being a chemist and/or a physicist will help somewhat.

Maybe we need a separate forum for "Words of Wisdom from PE"?

The point about a patent needing to make sense only to one "skilled in the art" raises a question in my unskilledintheart mind. What happens when there is a patent suit? I'm sure there are very few judges "skilled in the art" of making photographic emulsions. I know each side is going to bring in their own expert witnesses to present their case. But how is a judge who is unskilled in the technical nuances of the case at hand possibly going to be able to make a decision? Does it come down to which expert can best explain their point of view to the layperson? Or are there judges who specialize in cases involving patents of -say- photographic emulsions, and they are the ones who hear these cases?

 

[Photo Engineer]

No, there are no skilled judges. In the Kodak-Polaroid case, Kodak attorneys and chemical experts assured us that we had avoided the Polaroid patents on image transfer chemistry. The judge disagreed, but did agree that Kodak showed due diligence in trying to avoid Polaroid patents and therefore the damages were asessed on that basis, ie. lack of malicious intent.

PE

 

[Craig]

The point about a patent needing to make sense only to one "skilled in the art" raises a question in my unskilledintheart mind. What happens when there is a patent suit? I'm sure there are very few judges "skilled in the art" of making photographic emulsions.

True, a patent is addressed to a skilled worker, but that level of skill depends upon what the invention is. A very simple basic mechanical device (e.g. a paperclip) could be understood by anyone, so pretty much anyone in the population could be considered a skilled worker in that area. On the other hand in complex areas like pharmaceuticals the average skilled worker might be expected to have a PhD.

The nature of the Judges’ skill would depend upon what the suit was about, but there are specialized courts. In Canada for instance, there is The Federal Court that only handles cases related to Tax, Intellectual Property, and review of Federal Commissions and Tribunals, and a few other things. So simply by the nature of their docket, the judges do become specialized and knowledgeable.

Back to the nature of the suit. If it was about determining if a patent is valid, then the judge would be applying the Patent Act, and the Patent Rules to determine if the patent was properly examined. The actual invention disclosed in the patent is almost irrelevalent.

If the suit is about infringement, then it's different. There it's usually about examining some prior art (other patents, publications etc) and comparing them to the invention in the patent in question to determine if it’s the same thing or not. This is a difficult thing to do, and does require technical knowledge, because the Judge is required to understand both inventions. Expert witnesses would be required to explain what each invention does and how they work.

This gets us into the world of claim drafting, as how the claims are written defines the scope of the invention, and what is covered and what is excluded. The judges’ job is to interpret those claims, determine what is the invention, and is it the same as the invention that alleges infringement.

Generally speaking, most judges have degrees other than their law degree, and they are often in the sciences if a judge will be dealing with intellectual property, and the cases assigned to them can be based on their background. For example, if a case involves infringement of a mechanical device and there is a judge who has a degree in Mechanical Engineer, then that would be assigned to him. He may not fully understand the invention at first, but at least has the background to be able to ask intelligent questions to help understand and make an informed decision.

As a rule, Patent Agents almost always have a technical background, generally prior degrees in Engineering or the sciences.

 

[Photo Engineer]

Craig;

Again the perfect answer. Unfortunately, in many cases in the US, the Judge knows nothing about chemistry or physics or engineering. So, when chemists and attorneys with chemistry backgrounds said that the Kodak RDR (Redox Dye Releaser) was dissimilar to the Polaroid diffusable dyes and the reverse diffusion and black goo were dissimilar to Polaroids color goo, it didn't go well with the judge.

In both systems they ended up with a diffusing dye regardless of chemical makeup, second they both formed an image regardless of the configuration of the camera, and the goo blocked light in both cases, what matter if one was white and was the base for the image and the other was black and formed the back of the image. He saw no difference, but only the effort taken to diligently avoid being the same as Polaroid.

So, notwithstaning the opinions of (I believe) 3 major legal firms for Kodak before we went into production, the judge ruled opposite them.

This is interesting, in that if the colored coupler patent of Kodak was ever taken to court, the opposing party would probably have won if you use the same arguments. The same probably would have worked if someone had taken Kodak to court over the multiple slide hopper coating and the curtain coater.

In the final analysis, the bevy of attorneys hired by Kodak said that Kodak might be held to have violated the fundamental concept of an integral wet pack based on Polaroids broadest claim, but some held that the claim was too broad and others said there were enough differences to distinguish it.

In the end, Kodak won by losing and Polaroid lost by winning. Kodak went back to digital more rapidly than they otherwise would have done and Polaroid pushed on into conventional image transfer.

PE

 

[Craig]

Craig;

Again the perfect answer. Unfortunately, in many cases in the US, the Judge knows nothing about chemistry or physics or engineering.

Judges can be funny creatures, and all of them have a major flaw - they are human. A good friend of mine is a Crown Proscutor, and he cut his teeth doing drug proscutions. They are generally pretty cookie cutter cases: possession of narcotics, sometimes for the purposes of trafficking, sometimes not. The outcome of the trial could be very different, depending on the judge.

In his words, some judges would convict Jesus Christ for possession of thorns, and others would have let Hitler off with a warning.

 

[eddym]

This is precisely the kind of scenario I envisioned that prompted me to ask the question. Having learned from PE's posts here a little about just how complex the photographic emulsion making process is, I could see how trying to explain this to a non-photo-engineer, learned in the law though he/she might be, would be a very difficult task.
Thanks to both you and Craig for your enlightening answers.

Craig;

Again the perfect answer. Unfortunately, in many cases in the US, the Judge knows nothing about chemistry or physics or engineering. So, when chemists and attorneys with chemistry backgrounds said that the Kodak RDR (Redox Dye Releaser) was dissimilar to the Polaroid diffusable dyes and the reverse diffusion and black goo were dissimilar to Polaroids color goo, it didn't go well with the judge.

In both systems they ended up with a diffusing dye regardless of chemical makeup, second they both formed an image regardless of the configuration of the camera, and the goo blocked light in both cases, what matter if one was white and was the base for the image and the other was black and formed the back of the image. He saw no difference, but only the effort taken to diligently avoid being the same as Polaroid.

So, notwithstaning the opinions of (I believe) 3 major legal firms for Kodak before we went into production, the judge ruled opposite them.

This is interesting, in that if the colored coupler patent of Kodak was ever taken to court, the opposing party would probably have won if you use the same arguments. The same probably would have worked if someone had taken Kodak to court over the multiple slide hopper coating and the curtain coater.

In the final analysis, the bevy of attorneys hired by Kodak said that Kodak might be held to have violated the fundamental concept of an integral wet pack based on Polaroids broadest claim, but some held that the claim was too broad and others said there were enough differences to distinguish it.

In the end, Kodak won by losing and Polaroid lost by winning. Kodak went back to digital more rapidly than they otherwise would have done and Polaroid pushed on into conventional image transfer.

PE