I wrote:
> Hoyt A. Stearns Jr. <[email protected]> wrote: > > I guess he could say that there is no "art" yet -- it's a pioneering >> patent, but that's a legal question. >> > > No, the patent *must* enable a PHOSITA to replicate, or it is invalid. > That is the main purpose of a patent. . . . > What I am saying here is that there has to be an art. You can't claim the technique is so new that no one has the skill to replicate it. First, that would be ridiculous in the case of the Rossi device. Anyone can see it would not be difficult to replicate. Second that would be unprecedented in the history of technology. Anything that one group of skilled experts can make, another group of skilled experts can replicate, with the possible exception of a few things such as thermonuclear weapons, robot explorers on Mars, or the CERN Atlas Detector. Granted there are trade secrets which experts cannot easily reverse engineer and replicate, but that is only because the experts do not have access to the secret, not because the process is inherently too complicated to replicate, or too new to replicate. A patent must reveal all secrets. It is the opposite of a trade secret. If any aspect of it is secret, the patent is invalid. Most trade secrets survive not because they are particularly difficult to replicate but because they are not important enough to be worth the effort of reverse engineering. (In real life, most companies would not bother to reverse engineer. They would poach key employees instead.) Third, if the device was so new and unprecedented that no one could replicate it, that would mean the inventor cannot explain how to make one, which means it would not be patentable. This would also make it impossible to mass-produce. Note that valid patents often leave out what at first glance a person might consider a critical aspect of an invention. The invention might be useless without these details. For example, the Wright brothers' 1906 airplane patent did not include any information about engines or propellers. This was valid because they were not trying to patent engines and propellers. They were patenting the three-axis control method. It was also valid because everyone knew you cannot fly an airplane without an engine and propellers. You do not need to state something so obvious in a patent. Here is the patent: http://invention.psychology.msstate.edu/inventors/i/Wrights/WrightUSPatent/WrightPatent.html This patent held up very well. It survived many challenges. One of the best-known and biggest challenges was the use of wing flaps instead of wing warping. This patent was ruled broad enough to include the former. This patent was written by patent attorney H. A. Toulmin, who knew what he was doing. The Wrights first wrote a patent themselves which was summarily rejected. An amateur patent written by them would not have lasted five minutes in court. Toulmin was the one who recommended to them that they narrow the patent down to a claim for three-axis control without other details. - Jed
