Thursday, June 19, 2008

Patents can be patented:

Patent prosecution is a multi-billion dollar a year industry in the United States, with much of the income (at least based on the fees I have paid over the years) due to patent claims drafting and patent claim modification during patent examination. Patent prosecutors are manufacturers of patent claims (and indeed can be sued for selling a defective product). Patent prosecutors use technology tools to manufacture and optimize their product (patent prosecution would shut down in the United States without computers). And like other industries with manufacturers, there are always improvements to be made, i.e., there should be new and better ways to draft patent claims. Let's ignore requirements 102, 103 and 112 of the 35 USC on patenting, and find out whether new patent claims drafting methods can be patented. A priori, I offer that at least three important precedents support the affirmative:
a) Baker v. Selden - if I can patent methods of structured prespective drawing with paper and pencil, I should be able to patent methods of structured claim drafting with paper and pencil; b) State Street - patent claim drafting is a VERY VERY concrete, tangible and useful business method for manufacturing VERY VERY concrete, tangible and useful patent claims and specification, if such methods earn law firms billions of dollars a year; and c) Lundgren - patent claim drafting methods are, well, METHODS of 35 USC 101 that rely on various degrees of technology to implement, technology now optimal to claim.
With many areas of technology having tens of thousands of new patent applications each year, licensing a new claim drafting method for, say, $1000/patent could be quite lucrative. And given increasing PTO fees for patent claims, there could be good such demand.