Submarine patents?

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Jan 23, 2010
12:21 PM EDT
No, not if you're referring to real submarine patents, because they were more or less legislated out of existence in 1994.

Here's the deal:

The classic submarine patent wasn't a patent at all. It was a pending patent, ie, a patent application that had yet to be granted.

Unlike copyrights, patent claims are actually examined for merit by patent examiners, and the process generally takes a while as questions from the examiners are ironed out, and claims rewritten to answer their comments and requirements.

Unlike a patent that has already been granted, a pending patent is not published. There is a logic to this. Patents are intended to encourage inventors to disclose their discoveries as opposed to keeping them secret. If inventors worried that a failed patent application would cause loss of their invention, they might be disinclined to seek patents.

In the old days, US patent-holders received a 17 year monopoly that began the day the patent was granted.

With that in mind, a special kind of patent abuse arose. A patent application would be filed with claims written so as to insure ample interaction with the patent examiners. it would also allow time to add claims, broaden existing claims, and to take advantage of events after the original filing date, all cloaked in the secrecy of the patent process.

While this was going on, others might be discovering the same things, might be incorporating them into products, might even be applying for patents of their own, unaware that a patent was pending because applications do not show up in a patent search.

Then, finally, after a period of some years, the patent is granted and the patent holder has infringers to go after on day 1.

The big change in 1994 was that patent terms were extended to 20 years, but start running on the day of the application, not the day a patent is granted. The incentive to stretch out the application process may not be completely eliminated, but is made very expensive because each year of delay is a year that the patent cannot be exploited...and, don't forget, infringers prior to the patent's grant can't be liable for damages, so the years lost really are years lost.


Jan 23, 2010
1:39 PM EDT
Thanks for enlightening me.

I read the term 'submarine patents' somewhere in another discussion of this topic in some article. I thought it was in the Webmonkey article, but seems like I read it somewhere else. Probably the WhatWG mailing list here:

I thought it referred to patents like in the Microsoft vs. Alcatel-Lucent MP3-case. Microsoft believed it had all licenses, and the ones it didn't, the patent holder was OK with. Until Alcatel bought that patent holder and they decided to sue MS anyway. The people on the mailing list refer to it as 'undisclosed patents'. Anyway, it made this whole IP/juridical thing which might bore a lot of people sound a lot more exciting I have to confess. Maybe I should be a tech analyst, copying terms from other articles while I don't know what's exactly meant.

Jan 23, 2010
7:49 PM EDT
> Maybe I should be a tech analyst, copying terms from other articles while I don't know what's exactly meant.

Market saturation hasn't been reached yet?

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