2010-08-22

Nikola Tesla continued....

The application itself consists of five parts: petition (who is filing), oath (swearing to originality), specifications (how is it made, what it does), claims (what is new, important, and patentable about it), and drawings. A specialist, a patent examiner with expertise in one or several fields, studies the application and begins the often long, unpredictable process. The heart of the application lies in its specifications and claims.

Language describing a device's function or manufacture might later become crucial to making distinctions between it and a world of seemingly similar machines. Ordinary words (like "sever , "inclined," "adjacent") have judicial pedigrees and must not be used casually. And the result must be clear enough that a person skilled in the appropriate arts could construct a copy from the description.

Claims should be neither too broad nor too narrow-but they must stake out clearly the territory the inventor wants for his own. Up to twenty claims may be submitted with the basic filing fee; more claims mean more charges.

Tesla's patent claims, it will be noted, generally iterate one or two basic ideas but described in several ways: this is good patent form. There are no unusual requirements of the drawings, so long as they correspond well with the specifications. Tesla never sent actual models with any filing, though a skeptical examiner did visit once to have a look at his remote–controlled devices (No. 613,809). The Patent Office only occasionally insists upon working models, most famously for all applicants presenting perpetual motion machines. But then, the Patent Office for years used the same tactic to shoo away persons bearing drawings of flying machines.

Between the filing and the grant of a patent, a number of time – and paper–consuming things generally happen. The examiner will request clarifications, disallow various claims, point out errors, and give notice of "interference"–existence of applications by other inventors whose work and claims are very similar. (In the U.S. an interference may prompt an investigation to determine whose work has priority in actual fact, not merely in time of filing.)

Tesla and his lawyers submitted arguments to dissolve potential interferences in nearly every patent. Against an earlier radio patent by Wilson, for example, Tesla pointed out that his own four–circuit transmitter / receiver (No. 725,605) operated with two distinct frequencies, while Wilson's used only one, polarized in two planes. Similar distinctions were made to challenges on behalf of Fessenden, Cardwell, MacKaye, Hogg, and DeForest.

When all the changes are made, claims language negotiated, objections answered, the sheaf of correspondence concerning a single Tesla patent, the "patent wrapper," might run to fifty or eighty pages and thousands of dollars in legal fees.

With all of these matters settled, and with the examiner satisfied that the patent can be reduced to "constructive practice"-that it can actually be built–a patent may finally be granted. (Tesla had a great deal of difficulty convincing the Patent Office about a balloon-supported conductor in No. 645,576. The inventor clearly didn't care how his antenna arrived at a great elevation, but the examiner did.)

In many ways the woes of an inventor only begin with the patent's issue. The patent is, legally, a "negative right"; it does not grant a right to manufacture (which might infringe in the process on other patents), it merely assures the right of its holder to bring infringement suits in court–a hazardous and expensive privilege.

The court might look into the patent and perhaps decide its novelty is a mere improvement upon some earlier design, the work of a skilled mechanic but not original or ingenious enough to merit a patent. Or it may conclude the patent covers something altogether obvious. Worse, the patent might describe a device patented earlier, a fatal case of "anticipation." It may be the inventor hasn't been vigilant, allowing general borrowing of the patent or, conversely, that the patent hasn't been put to any practical use-either way the court will detect "abandonment" of the patent. In all of these cases the patent will not be sustained. (In granting a patent, the Patent Office makes no guarantees about its legal durability.)

The pivotal patent case concerning priority in radio (Marconi Wireless Telegraph Co. v. U.S., 320 U.S. 1) didn't work its way up to the Supreme Court until 1943, when some of the issues in question were nearly thirty years old. Tesla, it must be understood, was not a party to this suit.

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