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It's not a contract

Posted by R. Berg on March 03, 2003

In Reply to: Hey Mr Prejudiced posted by Lewis on March 03, 2003

: : : : : Hello there,
: : : : : I browsed a website and ran into certain paragraph about patent. I don't quite understand its meaning. Could you please help me out? It is cited as following:

: : : : : Section 103. Conditions for patentability; non-obvious subject matter

: : : : : (a) A patent may not be obtained though the invention is not

: : : : : identically disclosed or described as set forth in section 102 of

: : : : : this title, if the differences between the subject matter sought to

: : : : : be patented and the prior art are such that the subject matter as a

: : : : : whole would have been obvious at the time the invention was made to

: : : : : a person having ordinary skill in the art to which said subject

: : : : : matter pertains. Patentability shall not be negatived by the

: : : : : manner in which the invention was made.

: : : : : 1. What is patentability? Any difference from patent?
: : : : : 2. What does this paragraph mean? Could you analyze the paragraph? It's way too long to be understood.
: : : : : 3. What does the last sentence mean? Does it mean the refuted present patent applicant can't deny the patentability of the prior art because of its close similarity? Namely, A is denied because A has similiarity with B, which has patent. A can't use this excuse of similarity against B claiming that B shouldn't get patent either. Am I right? I am pretty confused now. Thank you for your great help.
: : : : : English Learner

: : : : This is a difficult paragraph to understand. To be sure of what it means, you would have to have a patent attorney interpret it for you. Here is my understanding of it, but remember that I am not a lawyer.

: : : : 1. Patentability means whether an invention CAN (legally) be patented or not--whether it qualifies as something that could have a patent. Some inventions are patentable but do not have actual patents.

: : : : 2. I understand the paragraph to mean that an invention cannot be patented unless it is different enough from all previously patented inventions that a typical person familiar with the particular field would not have been able to invent the new thing, given the state of technology that existed at the time the new thing was invented.

: : : : 3. The last sentence means something like "The way the invention was made cannot be a reason for denying a patent to its inventor," but I don't understand how that rule would be applied.
: : : Thank you very much for your interpretation. That's what I thought in the first place. That's why I felt puzzled by its contradiction (the last sentence). Thank you again.

: : I hate contracts and especially Contract Law - which is quite natural, given that my job means that I have to deal with Microsoft who worship the damn things. The sole object of Contract Law is to force you to hire an attorney of some type just to be able to translate perfectly good English sentences into the unintelligible rubbish that invariably appears in a contract. Basically it's a scam to keep lawyers in business. They use all the tricks to make things as unclear as possible: they go for hugely long and complex sentences, with subordinate clauses embedded all over the place, they use archaic langiage wherever they can. My theory is that it's again deliberate in the hope of making things so unclear that people unwittingly breach contracts so they can be sued... by whom? You guessed it, another attorney.

: : Your quoted paragraph above (and I note with a heavy heart that it's Section 103, meaning there's a ton of other gobbledegook as well) isn't particularly well-written, even against the appalling low standards that contract lawyers set themselves. The first few lines - "(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between..." - just SCREAMS for a comma after the word "obtained" in order to delineate the start of that awkward subordinate clause beginning with "though". It'd be a lot more understandable if that "though" was replaced with "even if". I also view the usage of "negatived" at the end as a verbal particible with utter scorn - the word is "negated", but as usual, a lawyer will always invent a word wherever he can.

: : Ms. Berg's interpretation is, I'd say, spot on the mark. However, to try to make things clearer, I'll use an example to explain the way I see this piece of legal doggerel.

: : "So, you'd like to patent your catchable throwable plastic flying saucer toy with a small hole in it so it can be hung up for storage, would you? Well, sorry chum, you can't. Yes yes, I know you've called it a "catchable throwable plastic flying saucer toy with a small hole in it so it can be hung up for storage", and that nobody else has patented anything of that exact description ever, but that makes no difference, bucko. It's a Frisbee with a hole in it, and anyone could have thought of that. Hey, don't look so disappointed now. If you find a way to glue a beercan holder onto the side of a yo-yo, itself stuck to the top of a Frisbee, thus inventing a flying returning tray that you could hurl from your chair into the kitchen, that would hover there for a moment, allowing your wife time to pop a can of beer into it, and then it'd zip back to deliver your beer to you, now THAT would be patentable, even if all you'd done was glue three already invented items together."

: MicroSoft may use lawyers and contracts like that, but the general purpose is predictability - to cover foreseeable eventualities and know what the consequences should be for all the people involved. I like Plain English to be used in agreements and write deals in a way that the parties (i.e. people) will understand. Contracts are there for the people who use them, not for the lawyers and if people were not such double-dealing weasels, then a lot of the small print could be obliterated.
: There is so much legal work out there, that nobody actually needs to create it through bad English usage.

Anyway, the paragraph that's caused so much trouble doesn't come from a contract. It's part of the U.S. statute governing patents. (I looked it up before answering English Learner's questions, partly to determine what Sec. 102 said.) As such, it was probably written by more than one person, and I'm guessing that that non-sequiturish last sentence embodies some sort of compromise.