Where have I heard this before?

This wasn't the first patent I drafted. A few years prior I was consulting for a company and we co-developed some unrelated technology (same field, totally different invention). I was enlisted to help draft that patent application (I'm listed on that patent, by the way).

In that application there was an oddly worded description of the rod-string. I reworded the sentence a little, but it was still oddly phrased. Not wrong, just not the phrasing a person having ordinary skill in the art would have used. The kind of phrasing you get from an attorney, but not enough to completely rewrite. Fast-forward to 2018, when I needed to file my own non-provisional application. I used the same attorney, and we used the same basic framework text as the first draft. I rewrote that sentence yet again, but it was still oddly phrased. In effect, I copied myself here.

It's déjà vu all over again

Fast-forward to 2023. I found Big Corp's published application and got to the phrase "thin joints of steel bar that are threadedly connected through couplings" and instantly recognized that I had heard that before, but where? Why was that oddly phrased sentence so familiar? That's right, because I had rewritten it… multiple times. They were my own words, in an application for the exact same technology, with someone else's name on it. Go ahead and Google that exact phrase.

Now when you read these two applications you'll say what everyone says: but it's just the background section — and you'd be absolutely correct. That has no bearing on infringement and has no bearing on whether they actually copied my idea. No bearing on whether they truly invented anything. All true and fair statements. But if you're so lazy as to copy text from the very patent you are trying to design around, what are the chances you're a sharp enough inventor to have truly invented something novel? Certainly luck and a series of systemic failures were at work here — but that does not equate to a novel invention.

Applicant-admitted prior art

And here's the part that isn't just an ethics gripe: when their Background recites the rod-string, the rotation problem, and the rest as known art, that's an admission. The law calls it applicant-admitted prior art — the applicant's own on-the-record statement that those elements were already known. It won't, by itself, do the heavy lifting — the invalidity grounds still rest on the real references — but it's powerful corroboration: the applicant, on the record, conceding this groundwork was old. So the copied Background isn't only lazy; it's a signed confession to exactly that, and it returns to back up the prior-art grounds when they get serious.

And there's a procedural bonus to raising this in a PGR specifically: the admission is fair game here. In an inter partes review, the sort of applicant-admitted prior art sitting in a patent's own Background can't be the basis of a ground — an IPR runs only on patents and printed publications, and the Federal Circuit said exactly that in Qualcomm v. Apple, 24 F.4th 1367 (Fed. Cir. 2022). A PGR isn't fenced in that way: its grounds reach any basis for invalidity under § 282(b), so this on-the-record concession can back the prior-art case directly instead of getting bounced at the door.

Do you need proof?

I did some side-by-side comparisons. What do you think? They did some light editing. What I really want to know is: was this just lazy? Or is the system so horribly broken that this was done knowing full well there would be absolutely no repercussions? By the end of this, you might believe me when I say I'm pretty sure it's the latter.

Lightly edited, reorganized. But clearly copied. Clearly, right? You see what I see, don't you?

I see what they did here. I talk specifically about the rod-string, but they wanted to broaden it to tubing. They just cut the rod-string-specific wording to broaden it. Also this paragraph held the déjà vu all over again — "thin joints of steel bar that are threadedly connected through couplings".

I think the directionality of the wellbore was an important distinction, but hey, sometimes less is more. In their case, much less is much more.

Wow… Just wow. Hardly even edited. This isn't monkeys on typewriters, right? You see what happened here, right? My exact words attributed to someone else. Have some integrity. But again, why have integrity when there is no repercussion for unethical practices?

This is not fair use

When several folks at the USPTO said to me: "oh, that happens all the time," this is what they meant. Fair use, not important. Mechanical text, not creative (it's oddly phrased enough to be creative in my opinion). I happen to think the entire patent application is a creative document in every sense of that word.

But here's the crux: yes, I copied text (my own), but I had permission. That's an important distinction. Even if I didn't have permission, who cares, right? Well, if you use my words in the process of also copying my core technology, it should be abundantly clear why I would have a problem with that. If it was copied for some other unrelated technology, I'd probably never even know… but this one I knew.

If you want to mechanically copy my patent (the other part of copyright, i.e. post the patent on your web page, or print copies and hand them out), that's fine. But this. This is not ok. Could you say they obtained this patent under false pretenses? I sure think so. To be clear, the legal version of that charge — inequitable conduct, a fraud on the Office, duty of candor, etc. — sits behind a deliberately high bar: you need a material misrepresentation made with the specific intent to deceive the examiner, and I'm not formally leveling that here. I'm saying it fails the smell test. The law and the smell test don't always agree — and that gap is most of what this blog is about.

Even if you still don't see my perspective on the deeper idea copying, to my mind this literal copying is ethically wrong. There's no excuse for this. Worse, there is no penalty for this, so here we are. You can literally copy someone's patent application and get one of your own. That's wrong and shameful. But no one seems interested in putting a stop to it.

You might call it a workaround

I also know this has no bearing on any technology disclosed in the rest of the document. You should go read the full disclosure independently. Read it with a skeptical eye. What was the true intent of that application? To actually invent something? Or to, just like the above text comparisons, lightly edit the content to make it seem different, but (again just like the above examples) not actually add any useful content beyond what already existed?

A workaround is a perfectly fair thing to patent. This is how the patent system is supposed to work. That's not what happened here. The copied text is just illustrative. Give me the benefit of the doubt and I'll prove the rest. I'd still be having this discussion if they didn't copy text, but the copying makes everything so clear and obvious. Look carefully at the rest of their disclosure and you'll see nothing new was presented. It's just wrapped in different terminology. This is wordsmithing, not innovation.

Eventually I'll post about how the patent system "should" work… but it might take a while to get through all of this first.

Somehow I'm the bad guy

What's worse is the USPTO even went so far as to say it was improper for me to point this copying out. Seriously. It's perfectly fine to plagiarize, but "we draw the line at pointing it out." I'm not making that up (well, I made up that quote, but that was the gist of it). Not once, but multiple times. The examiner of my third-party submission (coming up in the next post) and the Office of Enrollment and Discipline (OED) both said it too. Should I file a formal complaint? I wonder how punitive the fee for filing a complaint is…

I understand this is a non-issue… mostly. At least in the framework of patent law. But you should agree this is at the very least sloppy and lazy — and, in my opinion, highly unethical. Or… and this is my opinion… it's an indication of how bad things are in the state of innovation. "Hey, we can just copy this. There's no downside."

Related dispatches

• Dispatch No. 6 — The Third-Party Preissuance Submission — where I turned this recognition into a formal third-party prior-art submission.
• Dispatch No. 29 — Independence Day — the Independence Day coda that ties this déjà vu back to the constitutional bargain.
• And pretty much all the rest.