Let's play a game: Guess what's being patented!

Reader iainmclean works in research and development, which means iainmclean reads a lot of patent-ese. Via the new, awesomer Submitterator, iainmclean sent us an excellent example of how the language used in a patent application can make it very difficult to tell what, exactly, is being patented.

Here's how the game is played. First, read the paragraph below:

An apparatus, comprising: a flexible elongate member that defines at least one lumen and is configured to be inserted within a body passageway of a patient, wherein the flexible elongate member includes a proximal portion, a distal portion, and a medial portion disposed between the proximal portion and the distal portion, and wherein the distal portion is movable between a substantially linear configuration and a curved configuration; and a stiffening member coupled to the flexible elongate member, the stiffening member being movable to a selected location along a length of the flexible elongate member to modify the flexibility of the selected location of the flexible elongate member, and wherein the stiffening member includes a first portion and a second portion, the first portion having a first stiffness and the second portion having a second stiffness different than the first stiffness.

Next, check out the attached image and see if it matches up with what you imagined. Hint: The image is much more safe for work than I guessed it would be.

Maggie Koerth-Baker is the science editor at BoingBoing.net. She writes a monthly column for The New York Times Magazine and is the author of Before the Lights Go Out, a book about electricity, infrastructure, and the future of energy. You can find Maggie on Twitter and Facebook.

Maggie goes places and talks to people. Find out where she'll be speaking next.

MORE: fun • game • medicine • mostly safe for work • patents • submitterator • Technology • what is seen cannot be unseen

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mkultra

While the point is appreciated, and certainly has some validity to it, I personally could tell quite easily that it was some sort of variably-flexible endoscope.
- http://www.facebook.com/jkrems Jan Olaf Krems
  
  Yes, me too. I took the first two lines to be at “endoscope” and then there was some talking about different stiffiness of sections. So, not really hard to tell. I guess they have to write it like this so they don’t use special domain language..? Can anyone enlighten me?
- http://profiles.google.com/keithdtyler Keith Tyler
  
  This. I imagined a flexible tube that can be curved remotely with a collar that slides along the tube that can straighten the tube at a given point. Maybe we’re just good at reading… English.
  
  I have to assume the OP read the description and said “huh huh, it says stiff. huh huh, it says member. uh huh huh.” Which means BB is apparently now using 12 year olds as contributors.
  - snowmentality
    
    Well, I both immediately understood it as some sort of endoscope, and snickered because it said “member,” “inserted” and “stiffening.” I’m not sure what that says about me.
    - http://optic.livejournal.com/ Optic
      
      That you are a normal human being with both reasonable reading skills and a sense of humor?
  - Guest
    
    It’s their lawn.
- Ianto_Jones
  
  Indeed! I formally demand that Boing Boing immediately cease with this sophomorish banter and resume publishing only those articles which express the sober, measured, and dignified tone that its discerning and mature readers have come to expect. Harrumph!
  - HahTse
    
    Hear, hear!
PhosPhorious

I thought it was a device for extracting coffee beans from civet butts.

Half right!
Roy Trumbull

The key to a patent is the claims. If the patent examiner tosses out most of your claims, the patent isn’t worth much. The best example of a good patent is the one for the original Gillette safety razor. The claims cover the invention plus many other combinations a competitor might use to accomplish the same thing.
http://www.flipp.ca Cam Hoff

Looks like a basket extractor for removing kidney stones?
screwt

I’ve looked at a few patents in my time, and this one I found relatively clear. The pic matched what I was expecting (or actually, it was missing a few details that were in the description).

It’s never going to be easy to describe something in a way that is both technically unambiguous and simple to understand. Given that this is a patent, it must err on the side of being technically unambiguous.

With patents, there is a certain amount of ‘patentese’ that is used. That’s for good reason, but it makes it harder to understand one if you’ve not seen many patents before. [A quick example: rather than saying "a straight rod", a typical patent would say "a substantially straight rod". This prevents someone evading the patent by making a very slightly kinked rod.] Remember it’s a very fine line between a patent that is too specific (easy to work around) and too general (hard to defend). That means claims in a patent tend to be long-winded, and built up in a series of dependent steps, leading to a lot of repetition. It has to be rigorous enough to stand up in court; if that means it isn’t simple enough to read really simply then so be it.
Ianto_Jones

My member is stiffening just from reading this!
Petzl

Uh, my guess was “toothbrush.” I’ll go sit in the corner.
spacemunky

It’s an extruded plastic dingus
nemomen

Having been scoped in the past for stones, I am afraid that that actually was what I was imagining. The horror.
kktkkr

I regret not noticing the “cannot be unseen” tag before I checked out the image. It also helps to know which “body passageway” is referred to.
- rrh
  
  I saw it was named “ow.png” and that seemed appropriate.
  - Red Robot
    
    It is indeed appropriate.
TFox

I’m going to get in line with the “looks like what I imagined” people, and it actually seemed easier to understand than some patents I’ve tried to read. But accurately describing something like that in words is never going to be easy, and any accurate description is going to take some effort to understand.
Bodhipaksa

It was very clear what this device was, what it would look like, and what it was for, but the description was dreadfully overwritten. For example: “ the flexible elongate member includes a proximal portion, a distal portion, and a medial portion disposed between the proximal portion and the distal portion.” In other words this part of the device has a near end, a far end, and a middle. And the middle is between the near end and the far end. It takes a rare type of plodding mind to write something as pointlessly detailed as that.
- Jorpho
  
  Well, the problem is that if you subsequently want to define the middle in greater detail for whatever reason, you will encounter problems doing so unless you specify exactly what constitutes the middle. Yes, it sounds a little strange, but patents can get invalidated for slip-ups of that nature.
  - Devilbunny
    
    But it simply uses the medical words for near end, far end, and middle – and it plausibly screws up one of the three! (Medial, though it does mean “closer to the center”, is usually used in the context of whether something is closer to or farther from the midline, not the midpoint. The medial portions of an endoscope would, as commonly understood, consist largely of optical fibers.)
chijack

you should also read the Steve Jobs’ patent for the glass staircase.
http://twitter.com/yogasuz Suzanne LaForest

I’ve been involved in some patent applications and one of the patent office’s most favorite words is “a plurality.” Once I learned about this, every single description of anything with more than one part was described as “a plurality of” instead of like, normal English, where I’d say “more than one,” or “multiple.” The language of patents is very strange and doesn’t add clarity, even in a technical way. I guess it’s just evolved over many years and has a lot of old-timey legalese.
- Jorpho
  
  Actually, it does serve to add clarity. There is no indefinite plural article; while you can introduce “a widget” and subsequently refer to it as “the widget”, it’s grammatically incorrect to refer to “a widgets” as a predecessor to “the widgets” – the only way to get around it is to introduce “a plurality of widgets” and then subsequently use “the widgets”. If you used “the widgets” right off the bat, it would actually cause more confusion.
  
  (For the same reason, patent claims also occasionally include the phrasing “the at least one doohickey”.)
  - sharkb8
    
    First, a plurality is one or more, but the way to refer to a singular element of a plurality is “one of the plurality of widgets.” But patent claim drafting is full of anomalies. The first being that each claim is a single sentence. There’s are claims that are pages long, making a single sentence just a mess of clauses. Also, the extensive use of “wherein” clauses to modify introductory phrases from earlier in the sentence. And the requirement that an apparatus claim listing multiple elements use the phrase “comprising” to mean that additional elements can be added, but are not claimed, while the phrase “consisting of” means the listed elements only. But! “Comprising” language is only open ended in the preamble of the claim, not in subgroups.
- http://optic.livejournal.com/ Optic
  
  don’t forget the handy phrase “In one embodiment, …”
http://pulse.yahoo.com/_AAXGK57IDWPVQN2ZAQMV5IMUWQ Dan

Don’t get me wrong, you are all correct in so many ways… but

Isn’t the abstract of the invention for deterinming what the invention at a quick glance. Or the drawing and specification.

I believe the claims are used to tell the public where the invention ends, not what the invention is.
http://twitter.com/bobledrew Bob LeDrew

Yay! I had bladder cancer, and I KNEW this was a cystoscope! YAY cancer! Oy. In the greater scheme of things, I would prefer to not have known.
Anne Czechanski

Rats. I guessed Q-tip.
http://bluestockingfarm.blogspot.com/ Faith

I guessed a flexible sigmoidoscope, but that’s probably because I do mucosal immunology…
http://twitter.com/Listener43 Listener43

The 1 lumen and flexibility gave it away – although as some of the other comments indicated, one could have come at it from the other end, as it were.
chf64

This was pretty easy to understand compared to some of the method sections in scientific papers.
BSD

It seems incredibly clear to me. The only aspects I couldn’t have described from the specification were the exact scale and the intended orifice. Note that the handle is unspecified.

Of course, this isn’t a game for me, this is my job, so I’m probably disqualified by some kind of amateur/pro rule.
Antinous / Moderator

My uretero-pelvic junction is twitching just from reading that.
http://twitter.com/unyellow Jason

This is clearly poetry meant to open the sluices at both ends. I for one welcome our new Vogon Overlords.
jerwin

I can’t say that I’m familiar with endoscopes, but the rule should be whether it’s intelligible to a person versed in the art of designing endoscopes, not whether it’s generally understandable.

However, Computer Science patents generally do not meet that standard. Perhaps all patents are written in a jargon specific to patent law, and are, as a rule, incomprehensible to anyone else.
tomrigid

An IP lawyer attached a tiny camera to his penis and called it “The Violator” but nobody got the joke.
http://grathio.com Steve Hoefer

My mental image didn’t have the doctor in it. Not sure what that says about me.

As much as I love to hate the patent system I don’t feel like this is a good indictment. It’s like that communication game everyone plays in 5th grade. One person is blind folded and has to describe how to make a peanut butter jelly sandwich to a second person. The second person does exactly what they’re told. There are two possible results: 1) A giant mess. or 2) a hilariously long and labored description. The patents that end up as #1 don’t get granted.
Another Kevin

If that description was the full text of the claim, I would imagine that there is at least one species whose phallus could be advanced as prior art. Distal + medial + proximal portions, check. Distal portion changes shape between straight and curved, check in many mammals. Stiffening member movable along the flexible portion – the baculum of most mammals would qualify. If there are mammals that have cartilaginous extensions to their bacula, so that the bone has two sections of different stiffness, then Mother Nature has indeed anticipated this claim when She invented the penis.

And yes, an endoscope was the first device that I imagined, too. But still, this claim is terribly drafted.
http://twitter.com/CultureBore Jason Prechtel

With the way the USPTO is set-up, the language has to be that ludicrously precise. Patent examiners will look at the patent application, and in their response back they will cite language from other patents that disqualify claims made on the patent, tell you that certain language is too broad or vague, or even tell you that what you applied for could be several patents and that you can only choose one to pursue for the rest of your application round.
rossmossfloss

I’ve been a patent examiner for more than a decade, and I can assure you that the above example is well written in comparison to many I have seen. Many attorneys seem to work very hard to make the claim as vague and obtuse as possible and they seem to believe that this is in the best interest of their clients. Maybe it is, I have never worked in patent litigation and maybe there is an advantage to labyrinth claims. No patent examiner likes legalese however. From the patent examiner’s standpoint, clearer and simpler is always better. It seems to me that there are also cultural differences between applicants. My experience has been that big US companies fight very hard and long to keep their claims vague, broad, and indefinite, whereas Chinese applicants seem to be much more agreeable to putting claims into clear and concise language. That’s just been my personal observation. But getting back to the example above, that is a well written claim in my opinion in terms of being understandable as to what is being claimed.
rossmossfloss

BTW, if you liked playing the guessing game, the USPTO is currently hiring examiners.
http://www.usptocareers.gov/jobfair/