What can You Trust about Chemical Patents?

Advice About Reading Patents

In my career, I have been the inventing scientist and I have been the person drafting a patent before being sent to a patent agent to incorporate the legalese.  I have even been both for the same patent! What can you learn from a patent? What part is ‘fake news’?

The conscientious scientist writes down the experimental description of the significant experiments carried out. The scientist explains what his/her interpretation of these results means generally. He explains what application of the present theoretical understanding of his subject leads him to predict generally based on this work. He states why he believes it is useful and may prove more widely useful.

Then the conscientious patent agent takes over. The patent agent's professional responsibility is different. You see, you have to pay to hold a patent: there are annual fees that must be paid to maintain this monopoly and it isn’t worth paying money unless the barrier to use is strong enough to prevent competitors from learning from your insight, slightly tweaking your protocol and getting essentially the same benefit. But it isn’t worth the time filling out your precious scientific expertise to perform all the possible permutations and combinations of every aspect of the methodology so everything can be presented in its own experimental and claimed in its own claim. Instead, the patent agent asks you to imagine, using your experience, imagination, knowledge of the literature, and knowledge of chemical theory to guess all the other conditions that would give, to some degree, the claimed outcome. 

The patent agent then writes a description of your invention including the full breadth of your considered opinion of what could work. Claims are also constructed encompassing both your educated guesses and what you have shown experimentally works. These are called the broad claims. They are there to prevent those who follow what you have taught from escaping your legal protection by making inconsequential or obvious changes or substitutions.

So what can you trust? According to US patent law at least one narrow claim must cover the best protocol for practicing the invention that the scientist has found out at the time that the invention patent is filed. Normally what is described in the experimental and talked about most completely in the body of the patent is the part that has been proven in the lab.