Monday, August 13, 2012

Inventions in Black and White

At a recent meeting of the USPTO Business Methods Partnership one of the assembled masses, an attorney from one of those big patent prosecution factories, asked Terri Raines, eCommerce Division Manager, Office of Patent Information Management, who at the time was touting the new eFiling project, "When will we be able to file drawings that are in color?"

How odd was that question?  At Way Better Patents our business methods patent analysts refer to these most contentious of patents as, "Still Life with Flow Chart" due to the proliferation of flow charts used to explain how these computer implemented inventions with no moving parts are implemented.  What, do these patent guys need color to explain that the data moves through the memory in a method for "obtaining at the computer, forecasting with the computer, calculating with the computer, blah, blah, blah" to deliver  some revolutionary process and then transforms our lives by delivering electronic coupons to our desktop?

Imaging the fun the examiners will have when the flow chart patents came in with color drawings?  Imagine the problem with color blind examiners (about 7% of the male population.)  Think about the fun on the interviews, "no the red is the method, the blue is the computer or is it the green".  Maybe the patent attorney was really a life science guy or an electrical wiring guy.  Color drawings?  Really?  Yikes.

Inventions Should Be Black and White

Patent drawings are an essential element in the exchange between an inventor and a patent examiner. Drawings — a two-dimensional projections of breakthroughs in scientific, technical, and mechanical innovation — are the visual means through which the inventor conveys the novelty of technical and scientific advances of an invention.

You can look at the drawings of the patents that are 150 years old and understand what is going on.

USPTO's guidance is straightforward.  Patent drawings are an assembly of crisp perfectly black lines has been used to describe the greatest innovations over the history of US patent system. Lines made with drafting instruments or a laser printer — very dense, sharp uniformly thick and black — on smooth, nonshiny white paper. (Or hopefully on a monitor with decent resolution.)  No shadows, subtle hues, or solid black areas. Movement indicated by a simple dashed line. The jagged lines of contemporary printers and graphic design tools verboten.

Imagine patent drawings being distilled into invention cartoons, or worse, invention infographics.  With legends.

Imagine the impact on design patents.  "Apple's titanium isn't the same color as the Samsung titanium so the design patent is invalid."  

Imagine the time it will take at USPTO and beyond to come up with the standard for submission of color drawings.  (Yes, we understand that are certain scientific domains where color has meaning but those domains are in motion all the time and science and technology discoveries are expanding at an exponential pace.  Just ask a patent examiner.)  Imagine the public comment on that debate.  Sure to be colorful.  (Sorry, couldn't resist.)

Pushing for color drawing (images) at the same time that USPTO is busy spending millions on a modernization that appears to be anything but seems ill advised.  The folks at USPTO are talking about transitioning the application e-filing process from the perfectly fine PDF format to MS Word (another proprietary format doomed from the beginning.) at a time when most grownups (see the inventions in the business methods domain is you are wondering) are moving to formats like HTML5 and XML.    The idea of having discussions about changing the format of the drawings to color instead of figuring out ways to make the existing repository of TIFF drawings more accessible makes your head explode.  But I digress.

Patent drawings should be black and white whether they are made with pen and paper, Adobe Illustrator, or a CAD system or some pro se inventor (patent speak for an inventor who does all of the work themselves) who scans in a stick drawing of their invention.  As our friends at Wikipedia note, "A color is specified according to the intensity of its red, green and blue components, each represented by eight bits. Thus, there are 24 bits used to specify a web color, and 16,777,216 colors that may be so specified."  (I'd like to call to order the Red working Group of the RED GREEN BLUE (RGB) Patent Drawing consortium.")  Imagine the pixel by pixel analysis of color patent drawings!

Black and white is two colors (actually black is the only color, the background is white).  Two is enough.  All of the great patents have drawings in black and white.  It should stay that way.