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Author Topic: How to protect a lens?  (Read 2122 times)

kokes

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How to protect a lens?
« on: 02-11-18 at 05:35 am »

I calculated a lens that elliminates spherical aberration. My problem is that it would be extremely difficult to prove that the lens someone is making is made using my algorhitm. I wonder if it is worth patenting something that will be pretty much impossible to prove.

One solution that came to my mind was to describe how the lens works, i.e. it only throws a single focal point instead of focal plane, which is easy to prove. However the term for ideal lens has been around for some millenia, so I am not sure I can patent it now. The function has no known mathematical formula, ie. y = x^2 or so, it is a new shape.
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MYK

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Re: How to protect a lens?
« Reply #1 on: 02-11-18 at 07:25 pm »

There are lots of patents on lenses.  If some element has a new shape that has not been used before in the art, then it should be straightforward to claim "A lens comprising an element with the shape ___________________."

So, I'm not sure I understand your question.
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"The life of a patent solicitor has always been a hard one."  Judge Giles Rich, Application of Ruschig, 379 F.2d 990.

Disclaimer: not only am I not a lawyer, I'm not your lawyer.  Therefore, this does not constitute legal advice.

kokes

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Re: How to protect a lens?
« Reply #2 on: 02-12-18 at 01:37 pm »

Thank you, I didn't realize I wasn't being clear.

I calculated a lens with an algorhitm that doesn't use any mathematical formula. I more or less programtically described a process how to construct it using analytic geometry and physics. So if someone comes up with a lens, I can't say: This is hyperbolic cosine and that is mine, ha! I can't tell if the lens is of my shape because I can't describe it. I can describe either the algorhithm, which is hard to prove that it was used. Or I can use phenomenological description, it focuses (paralel monochromatic) rays into a single point (+ cos(wave amplitude)), and since no other algorhitm is known for such a lens it can be safely assumed that it was made using my algorhitm or copying existing object. My question is if I can do the latter.
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Robert K S

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Re: How to protect a lens?
« Reply #3 on: 02-12-18 at 02:40 pm »

Difficult situation.  A product-by-process claim would not necessarily cover all intended-infringing structures since it would be possible to copy the physical structure from another structure that would potentially not be infringing since it might have been made according to a license or sold in a way that would trigger exhaustion.  A process claim may cover intended-infringing methods but not in any easily enforceable way since the infringement might not be detectable.  And, if I am hearing you right, there is no good way to formulate a patentable apparatus claim.  On top of all this, you might have Alice issues if your design method could be characterized as an abstract idea.  I think you will want to find good representation with experience both in the optical field and in drafting claims that will suitably protect your invention.
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This post is made in the context of professional discussion of general patent law issues and nothing contained herein may be construed as legal advice.

kokes

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Re: How to protect a lens?
« Reply #4 on: 02-13-18 at 09:07 am »

First of all, thank you, this is exacly as the situation stands.

Second, I was wrong with the cosine two posts up, I should have written: ... or something like that.

Third, I think I might have it:

an instrument made of transparent or transluscent material in shape of a lens, which can be obtained by application of aforementioned algorhithm for calculacion of an abberationless lens


 In other words, if I can make a copy of your lens using my algorhitm, then your lens violates my patent rights. I can make a lens that focuses light into a single point easily, plus I can see if there is a circle or a point straight away. As unprobable as is, someone could come up with another algorhtitm that also calculates the shape. However even in this case my patent holds, since I can make the same lens using my algorhitm.

What do you think?
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Robert K S

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Re: How to protect a lens?
« Reply #5 on: 02-13-18 at 01:37 pm »

What do you think?

I think you need to read and understand MPEP 2103(I)(C), 4th paragraph, 4th sentence: "Language that suggests or makes a feature or step optional but does not require that feature or step does not limit the scope of a claim under the broadest reasonable claim interpretation."
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This post is made in the context of professional discussion of general patent law issues and nothing contained herein may be construed as legal advice.

MYK

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Re: How to protect a lens?
« Reply #6 on: 02-13-18 at 04:55 pm »

What do you think?
I think that you would be very well advised to hire an experienced patent attorney who understands optics and has dealt with patents on lenses.

If you really insist on doing it yourself, at least read several dozen patents that are similar to what you want to do -- there are bound to be some -- and try to understand what they are claiming and how they are claiming it.  See for example https://patents.justia.com/patent/9658470  Is this GENERALLY how you're going about doing your lens design?  I don't mean that it has the same purpose or generates the same sort of lens, but does this give you some idea of how you might claim a lens that is algorithm-generated?

And above all, remember that "less is more" in a claim.  If you write out a three-page description as your claim, your patent will be absolutely worthless because it will only cover products falling within that tiny little narrow description.  If your claim is a dozen words, then all the broad possibilities that those dozen words encompass are covered.
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"The life of a patent solicitor has always been a hard one."  Judge Giles Rich, Application of Ruschig, 379 F.2d 990.

Disclaimer: not only am I not a lawyer, I'm not your lawyer.  Therefore, this does not constitute legal advice.

fewyearsin

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Re: How to protect a lens?
« Reply #7 on: 02-13-18 at 05:20 pm »

I calculated a lens that elliminates spherical aberration. My problem is that it would be extremely difficult to prove that the lens someone is making is made using my algorhitm. I wonder if it is worth patenting something that will be pretty much impossible to prove.

One solution that came to my mind was to describe how the lens works, i.e. it only throws a single focal point instead of focal plane, which is easy to prove. However the term for ideal lens has been around for some millenia, so I am not sure I can patent it now. The function has no known mathematical formula, ie. y = x^2 or so, it is a new shape.
First, your question "is [it] worth patenting something that will be pretty much impossible to prove"?  That's up to you.  Maybe having the patent will get you funding, even if you can't actually use the patent as a sword to stop your competitors.

Second, your statement "describe how the lens works" is a valid option, but you still have to describe how to make and use your invention in your specification.  As you note, the idea for an "ideal lens" is not new, so you can't claim a description of how an ideal lens works.

As noted above, your best bet may be to describe the actual structure of your lens.  In combination with this (and possibly as a separate patent filing), describe how you make the lens (your algorithm). 
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This comment: does not represent the opinion or position of the PTO or any law firm; is not legal advice; and represents only a few quick thoughts from the author, not a well-researched treatise.  Seek out the advice of a competent patent attorney for answers to specific questions you may have.

kokes

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Re: How to protect a lens?
« Reply #8 on: 02-14-18 at 02:52 pm »

I changed the line:

an instrument made of transparent or translucent material in shape of a lens, which is obtained by application of aforementioned algorithm for calculation of an abberationless lens

which means that solely my algorithm mustn't be used by third parties. It is in my own best interest to describe it as broadly as possible within reasonable scope. If someone comes up with an algorithm that also calculates the shape and is outside of my scope then unauthorized copies of my algorithm vs. other algorithm will become indistinguishable from each other. My sword will break. But even so I can still get funding through reputation and possibly other projects if I file for the patent. Sounds reasonable to me. Corrections took me all day today. It was very tricky.

... you still have to describe how to make and use your invention in your specification.

I did that also. Nothing new came up, I am ready to file for the patent tomorrow. I will then translate what I have done into English as accurately as possible, and post it here.
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still_learnin

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Re: How to protect a lens?
« Reply #9 on: 02-14-18 at 05:18 pm »

an instrument made of transparent or translucent material in shape of a lens, which is obtained by application of aforementioned algorithm for calculation of an abberationless lens

I don't think "aforementioned algorithm" is going to work, if "aforementioned" means "described in the specification." A claim is interpreted "in view" of the specification, but still has to stand on its own.

I think you need to describe the algorithm in the claim itself, otherwise you are likely to get an indefiniteness rejection.

an instrument made of transparent or translucent material in shape of a lens ...

Do you have a reason for reciting "an instrument ... shape of a lens" rather than "a lens" ?
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MYK

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Re: How to protect a lens?
« Reply #10 on: 02-15-18 at 04:23 pm »

You do realize that by posting all these details here, publicly, you are putting the patentability of your invention at risk?
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"The life of a patent solicitor has always been a hard one."  Judge Giles Rich, Application of Ruschig, 379 F.2d 990.

Disclaimer: not only am I not a lawyer, I'm not your lawyer.  Therefore, this does not constitute legal advice.

Rabid Levity

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Re: How to protect a lens?
« Reply #11 on: 02-15-18 at 04:24 pm »

Hello Kokes.  I do not think I would be posting the contents of a patent application publicly as yet, until such time as it will publish normally at the USPTO, which is 18 months after you file it.  Or did you file a provisional patent application?  Those do not publish.

Either way, you may want to consider deleting your most recent post, containing the explicit information about your invention.

Also, you should take what you have filed to a patent attorney or patent agent and see if they can help you with some of the fundamental requirements.

Good luck to you.
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kokes

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Re: How to protect a lens?
« Reply #12 on: 02-16-18 at 08:28 am »

I was told otherwise at the patent office. They told me I had one year to gather resources to patent in countries of my choice. I actually made a live version of the algorithm so that anyone can try it out. This in not wise, I was told wrong?
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MYK

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Re: How to protect a lens?
« Reply #13 on: 02-17-18 at 08:49 am »

I was told otherwise at the patent office. They told me I had one year to gather resources to patent in countries of my choice. I actually made a live version of the algorithm so that anyone can try it out. This in not wise, I was told wrong?
If you haven't already filed an application, you lose patentability in the vast majority of countries.

If you have filed a poorly-written napkin-notes application that does not conform to the requirements and does not disclose things properly, you aren't going to be able to successfully prosecute it and you will probably lose patentability in the vast majority of countries.

If you have posted a "live version of the algorithm" and your application was the mess that you posted above, you will probably lose patentability in the vast majority of countries.

If you do absolutely everything correctly, have already filed a well-written application that has a properly enabled disclosure and claims your invention correctly, and don't miss any deadlines along the way, then you can publish whatever you want, but it's still considered a bad idea to do so since it gives others a chance to exploit your work, find workarounds, oppose your application, and so on.
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"The life of a patent solicitor has always been a hard one."  Judge Giles Rich, Application of Ruschig, 379 F.2d 990.

Disclaimer: not only am I not a lawyer, I'm not your lawyer.  Therefore, this does not constitute legal advice.

kokes

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Re: How to protect a lens?
« Reply #14 on: 02-20-18 at 07:36 am »

I removed the application to be safe. Thank you for your good advices. My situation may differ in the respect that I only need a lens for a 3D printer and would actually welcome if someone else was on it. I am member of no institution. This has been one man show so far. Perhaps I make enough through my turbines, propellers and gears to cover the lens expenses as well. I need it printed now so that I can continue my art. I made a little animation showing the of rays going through lens in 3D as calculated by Blender renderer instead so that I have something to show.
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