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Based on examples of patents for high-tech inventions, methods of protecting know-how are considered. Among them: indication of extended ranges of values of process parameters and device characteristics; hiding the technology of manufacturing of the signify elements; masking significant features by transferring them to the claims without focusing on their technical results in the description of the invention. The importance of patenting military technologies is noted.
Теги: depending claims hiding military technologies patent военные технологии зависимые пункты патент сокрытие
All patents for inventions can be conditionally divided into "protective" and "specialized". This issue was already considered in [1]. Protective patents are designed, in particular, to protect technical solutions from unauthorized copying. Let us consider this kind of patents in more detail.
In order to have full protection of its inventive solution from copying, it is necessary to obtain patents in all countries, or at least where there is an infrastructure for production of the corresponding products. This will cost more than 100 thousand dollars, and such costs not everyone can afford. Nevertheless, almost every developer has a desire to protect their development from copying. It should be noted that the likelihood of obtaining income from the sale of licenses for their development is small, as there are ways to escape from the operation of foreign patents [2, 3], and many use it. But it is still unfair when the product of intellectual labor is used by third parties, without even mentioning the author's name. In some cases, they even manage to obtain a patent for someone else's solution. Theoretically, having even a Russian patent, the applicant can challenge a foreign patent, but this process is lengthy and requires high costs.
One way to protect your solution is to refuse patenting, so as not to disclose its technical essence. This approach is often cited by officials trying to justify the catastrophically low level of protection of Russian inventions. The argument boils down to the fact that as soon as we disclose the essence of our solution in a Russian patent without foreign patenting, immediately the whole world will start using it free of charge. But supporters of this view are far from practical issues of intellectual property protection. In fact, without obtaining a Russian patent, you can find yourself in the high-risk zone to be under the influence of the Russian patent not only of our applicant, but also of the foreign patent holder who can prohibit the production and sale of products to a Russian producer in his country. That is, Russian patents ensure the possibility of unhindered production and sale of their products on the territory of Russia without fear of receiving claims from foreign patent holders in violation of their rights. At the same time, the Russian patent with an earlier priority can help in asserting its rights abroad if it is opposed to a patent from another country where the production and sale of products is carried out.
In any situation it is advisable to hide the know-how from competitors if possible. The concealment of know-how by patenting products in neighboring areas of technology and the complete replacement of terminology has already been considered in [4, 5], so we will dwell on other methods below.
The idea of hiding know-how in printed publications is not new. Probably one of the first inventors and the author of this idea was Leonardo da Vinci. Some of his important inventions can not be realized by copying the designs according to their sketches. For example, the "tank" shown in Fig.1 (see more in detail [6], p. 73) is essentially a pioneering invention capable of protecting archers located inside a cone-shaped protective casing. The "tank" is theoretically driven by the rotation of the handles associated with the "gears" meshed with pins located on the inner surfaces of the wheel rims. But if you take a closer look at the left image in Fig.1, you can understand that the front and rear wheels will always rotate in different directions and the tank will not budge. It is difficult to suspect Leonardo of incompetence, most likely, he specially portrayed a non-working structure, so that opponents would not take advantage of it. Other military inventions often conceal the most important elements of the design. For example, in a mechanical chariot (for example [6], p. 114), the elements of transmission of motion from spring elements are concealed.
Simultaneously with military equipment, Leonardo more than 25 years developed aircraft. In some designs it was difficult to conceal the principles of operation, for example, in an air screw and a parachute ([6], pp. 116, 117), although in the latter Leonardo clearly reduced the size of the dome compared to man. In other solutions, the principles of functioning were concealed. For example, in the "flying machine" shown in Fig.2 ([6], pp. 116, 117), a person lies on the central bed with his back down, and with his hands must move the levers located at the upper left, along the longitudinal axes in both directions. But again, if you look closely, you can see that when the levers move to the side of the bed, the wings should theoretically rise and move in the opposite direction, and the hinges connecting the levers with the bed will interfere with this functional movement of the wings. In fairness, it should be noted that our contemporaries figured out these cunnings of Leonardo and portrayed the working design of the "flying machine" that walks the Internet like an original image. This design was even implemented in a reduced copy of the product on rubber traction and sold as a toy in stores.
In fact, Leonardo da Vinci invented all the main principles of protection of know-how: distortion of quantitative characteristics for the inability to operate devices, concealment of the basic principles of the operation of mechanisms and incorrect representation of principal nodes in complex designs. At present, when patenting, not all of the principles described can be used directly. For example, if an unworkable unit is deliberately submitted, the examination in most cases will detect this and refuse to issue a patent, citing non-compliance with the patentability requirement "industrial applicability" (Article 1350, Clause 4, Fourth Part of the Civil Code of the Russian Federation). If the application contains completely incorrect key values, for example, the temperature range of a process that even a specialist can not determine, then a patent can be obtained; however, its value will be small, since competitors will eventually find the right ranges and patent them. Let's look at examples of hiding know-how using Leonardo da Vinci’s techniques adapted to our time.
Most often, extended ranges of numerical values are used to hide know-how. Such ranges can be given both in the claims and in the description thereof. For example, in RU2218562, a structure for heating silicon samples by passing current through them, used to obtain an atomic silicon tuning of 7Ч7, the specification of the invention indicates extended temperature and time ranges for the process, and the true values are at their edges. Given the need to maintain the values of these parameters with high accuracy, reproducing the process of the patent will be quite difficult. At the same time, the patent does not say anything about the holding power of the silicon sample and the area of contact of silicon with electrodes, which are also very important parameters, since their smallest deviations from the optimal values will drastically change the heat removal from silicon and the required temperature in a strictly defined place get will be impossible.
In RU2413330 on the method for producing atomic thin thin-film single crystals, a rather wide range of magnetic field induction (10–50 G) is indicated in the claims, in which the required mode of bleeding layers from thin single-crystal fragments is realized. In the description of the invention, sufficiently wide ranges of electron beam characteristics for plasma formation (300–500 mA current with a pulse duration of 10–200 ms) are also given. To obtain high-quality single-crystal films, for example graphene, it is very important to optimally choose the ratios of these parameters in the specified ranges, which is intentionally not mentioned in the patent.
In RU2206882, a method for determining the concentration and quality of distribution of highly dispersed fillers in polymer compositions, etching of the polymer is carried out in a plasma at a generator power of 100–200 W and in the oscillation range of 2–15 MHz, followed by measuring the geometric characteristics of the etching zones. For each polymer and filler, the optimal ratios of these quantities are different, and it is difficult to independently choose their values for unauthorized use of the method.
RU2199171 describes a piezo scanner comprising a set of piezo tubes that are connected to each other by flanges. The third dependent claim provides for a controlled shrinkage of the glue in a limited volume during solidification between the tubes and flanges, which is important enough for the reliability and stability of the piezo scanner characteristics. At the same time, the sizes of the solidification zones and the bonding regimes in the patent are not listed, which makes it much more difficult for competitors to reproduce the required characteristics.
RU2249263 protects a cantilever-design of multi-probe sensor for a scanning probe microscope. It describes the design of the sensor with the drives of the consoles, but says nothing about the technology of the formation of drives, although they are the most important elements of such a device. It should be noted that the principle of hiding the technologies for manufacturing the most important elements is common throughout the world, despite the fact that European and American experts require a detailed disclosure of ways to manufacturing of not even the most important elements. Inventors can cause inaccurate or insufficient information about processes, which patent experts are often unable to identify, since in most cases they do not have in-depth technical knowledge and do not have the technical means to test the working capacity of the proposed solutions (the same applies to Russian experts).
RU2312872 on the method for producing thermoplastic rubber indicates primary ranges of filler content of 25–45 wt %, ratios of polyethene and elastomer of 0.8 to 4.5, as well as a final filler content range of 2.5–19 wt %. It should be noted that patents on methods for obtaining substances and their compositions traditionally include extended ranges of values, so it is sufficient to hide know-how without advertising the required values and provide very broad protection. But it must be borne in mind that competitors can break these broad ranges into narrow subranges, identify additional technical results and obtain additional patents. Therefore, when patenting substances and methods for their preparation, it is expedient to immediately select subranges within wide ranges and to identify independent technical results in them.
The following method of concealing know-how is related to the features of the representation of the dependent claims. The most significant feature providing the maximum technical result can be located at a dependent point at the end of the multi-part claim without accenting on its technical results in the description of the invention.
For example, in RU2267787, the toxic proteins are detected on the increased sizes of clusters formed on the substrate after they interact with antitoxic monoclonal antibodies in the method for detecting toxic proteins based on scanning probe microscopy, as represented in the independent claim. And the ultrasonic effect, which increases the reliability of the measurement by removing the introduced impurities, is indicated in the dependent eleventh claim. At the same time, the optimal characteristics of such an impact are not deliberately given, and their violation can cause the investigated clusters to detach from the surface of the substrate and lead to the impossibility of detecting toxic proteins.
In RU2339036, a method for assessing vaccine quality, which is a development of the previous solution, is carried out by measuring also the geometric dimensions of the particles on the substrate. And the measurement of dimensions taking into account the frictional forces of the particle probe, which is very important for the recognition of impurities and for increase of the reliability of measurements, is indicated only in the ninth dependent claim. Moreover, neither the claims nor the description specifies the specific values of these forces, which will make it more difficult for competitors to use the method unauthorized.
In RU2560567 on the method of introducing target molecules into cells, variants of puncture of the array of cells by an array of microneedles are described, as a result of which the target molecules penetrate into the cells. The dependent thirteenth claim indicates the use of ultrasound at the moment of cell puncture without indicating the power and frequency of ultrasonic vibrations, as well as without highlighting the technical results in the description associated with this item. In this case, only the correctly chosen ratio of power and frequency of ultrasonic vibrations simplifies the punctures and increases the efficiency of the method.
A variation of this approach may be the exclusion of the most important feature from the claims, while retaining it in the description. You can go further and generally exclude the most important signs from the formula and description, leaving them just in case in general terms in the claims.
RU2244256 describes a multi-probe sensor of the contour type for a scanning probe microscope, but there is no important section of the description of the manufacturing technology of such a sensor. In fact, at the time of the invention of this sensor, the technology of its manufacture was not developed, but it was required to get a priority on the design. Of course, there is a risk that the sign will be detected by competitors and patented, as we have already mentioned. In the case under consideration, when the technology was created, an application was immediately prepared for it and a patent was obtained.
When drawing up licensing agreements under the described patents, their extensions are possible, taking into account the transfer of know-how.
Given the experience of Leonardo da Vinci in concealing the know-how in military technology, it should be noted that their patenting is necessary, since, firstly, Russian weapons are sold abroad and may be subject to foreign patents, and secondly, foreign companies patent their development in Russia and receive Russian patents. For example, rockets and airplanes are directly patented in our country by France [7, 8], the USA [9, 10] and even Australia [11]. On the question of the head structure on intellectual property of the Ministry of Defense at the Army-2016 forum about what they will do if they fall into Russia under the influence of foreign-owned patents of the Russian Federation, the essence of the answer was that the problems would have to be solved within the framework of the legislation.
It should also be borne in mind that military technology can be masked by civil technology when patented. As already noted in [12], patenting the methods of digital image processing in photoelectric, probe, electron, ion and X-ray microscopy, it is possible to simultaneously protect the methods of guidance of surface-to-air and air-to-air missiles. Already active is the patenting by foreign firms of similar digital technologies in Russia.
Thus, it is necessary to patent certain types of weapons, but it is, of course, expedient to hide the real secrets of production to the maximum. All the above principles of hiding know-how are applicable to military products, but additional disclosure of special information (for this, there are corresponding services at military enterprises) should be limited, and one can not touch at all principled solutions and patent only what can not be hidden during the demonstration military equipment, which many Russian enterprises are engaged in.
Thus, the concealment of know-how in patents is a solvable and justified task. However, it should be borne in mind that it is not always necessary. For example, in advertising and tender patents (details in [3]), it is not practical to hide know-how, since it can reduce the presentation component of such patents. In patents protecting the unimpeded production and sale of proprietary developments, including patent troll, the concealment of know-how can even be harmful, since patent trolling is conducted by sufficiently competent specialists who are able to identify and patent the hidden, completely stopping production, especially if these know-how are not properly documented. ■
In order to have full protection of its inventive solution from copying, it is necessary to obtain patents in all countries, or at least where there is an infrastructure for production of the corresponding products. This will cost more than 100 thousand dollars, and such costs not everyone can afford. Nevertheless, almost every developer has a desire to protect their development from copying. It should be noted that the likelihood of obtaining income from the sale of licenses for their development is small, as there are ways to escape from the operation of foreign patents [2, 3], and many use it. But it is still unfair when the product of intellectual labor is used by third parties, without even mentioning the author's name. In some cases, they even manage to obtain a patent for someone else's solution. Theoretically, having even a Russian patent, the applicant can challenge a foreign patent, but this process is lengthy and requires high costs.
One way to protect your solution is to refuse patenting, so as not to disclose its technical essence. This approach is often cited by officials trying to justify the catastrophically low level of protection of Russian inventions. The argument boils down to the fact that as soon as we disclose the essence of our solution in a Russian patent without foreign patenting, immediately the whole world will start using it free of charge. But supporters of this view are far from practical issues of intellectual property protection. In fact, without obtaining a Russian patent, you can find yourself in the high-risk zone to be under the influence of the Russian patent not only of our applicant, but also of the foreign patent holder who can prohibit the production and sale of products to a Russian producer in his country. That is, Russian patents ensure the possibility of unhindered production and sale of their products on the territory of Russia without fear of receiving claims from foreign patent holders in violation of their rights. At the same time, the Russian patent with an earlier priority can help in asserting its rights abroad if it is opposed to a patent from another country where the production and sale of products is carried out.
In any situation it is advisable to hide the know-how from competitors if possible. The concealment of know-how by patenting products in neighboring areas of technology and the complete replacement of terminology has already been considered in [4, 5], so we will dwell on other methods below.
The idea of hiding know-how in printed publications is not new. Probably one of the first inventors and the author of this idea was Leonardo da Vinci. Some of his important inventions can not be realized by copying the designs according to their sketches. For example, the "tank" shown in Fig.1 (see more in detail [6], p. 73) is essentially a pioneering invention capable of protecting archers located inside a cone-shaped protective casing. The "tank" is theoretically driven by the rotation of the handles associated with the "gears" meshed with pins located on the inner surfaces of the wheel rims. But if you take a closer look at the left image in Fig.1, you can understand that the front and rear wheels will always rotate in different directions and the tank will not budge. It is difficult to suspect Leonardo of incompetence, most likely, he specially portrayed a non-working structure, so that opponents would not take advantage of it. Other military inventions often conceal the most important elements of the design. For example, in a mechanical chariot (for example [6], p. 114), the elements of transmission of motion from spring elements are concealed.
Simultaneously with military equipment, Leonardo more than 25 years developed aircraft. In some designs it was difficult to conceal the principles of operation, for example, in an air screw and a parachute ([6], pp. 116, 117), although in the latter Leonardo clearly reduced the size of the dome compared to man. In other solutions, the principles of functioning were concealed. For example, in the "flying machine" shown in Fig.2 ([6], pp. 116, 117), a person lies on the central bed with his back down, and with his hands must move the levers located at the upper left, along the longitudinal axes in both directions. But again, if you look closely, you can see that when the levers move to the side of the bed, the wings should theoretically rise and move in the opposite direction, and the hinges connecting the levers with the bed will interfere with this functional movement of the wings. In fairness, it should be noted that our contemporaries figured out these cunnings of Leonardo and portrayed the working design of the "flying machine" that walks the Internet like an original image. This design was even implemented in a reduced copy of the product on rubber traction and sold as a toy in stores.
In fact, Leonardo da Vinci invented all the main principles of protection of know-how: distortion of quantitative characteristics for the inability to operate devices, concealment of the basic principles of the operation of mechanisms and incorrect representation of principal nodes in complex designs. At present, when patenting, not all of the principles described can be used directly. For example, if an unworkable unit is deliberately submitted, the examination in most cases will detect this and refuse to issue a patent, citing non-compliance with the patentability requirement "industrial applicability" (Article 1350, Clause 4, Fourth Part of the Civil Code of the Russian Federation). If the application contains completely incorrect key values, for example, the temperature range of a process that even a specialist can not determine, then a patent can be obtained; however, its value will be small, since competitors will eventually find the right ranges and patent them. Let's look at examples of hiding know-how using Leonardo da Vinci’s techniques adapted to our time.
Most often, extended ranges of numerical values are used to hide know-how. Such ranges can be given both in the claims and in the description thereof. For example, in RU2218562, a structure for heating silicon samples by passing current through them, used to obtain an atomic silicon tuning of 7Ч7, the specification of the invention indicates extended temperature and time ranges for the process, and the true values are at their edges. Given the need to maintain the values of these parameters with high accuracy, reproducing the process of the patent will be quite difficult. At the same time, the patent does not say anything about the holding power of the silicon sample and the area of contact of silicon with electrodes, which are also very important parameters, since their smallest deviations from the optimal values will drastically change the heat removal from silicon and the required temperature in a strictly defined place get will be impossible.
In RU2413330 on the method for producing atomic thin thin-film single crystals, a rather wide range of magnetic field induction (10–50 G) is indicated in the claims, in which the required mode of bleeding layers from thin single-crystal fragments is realized. In the description of the invention, sufficiently wide ranges of electron beam characteristics for plasma formation (300–500 mA current with a pulse duration of 10–200 ms) are also given. To obtain high-quality single-crystal films, for example graphene, it is very important to optimally choose the ratios of these parameters in the specified ranges, which is intentionally not mentioned in the patent.
In RU2206882, a method for determining the concentration and quality of distribution of highly dispersed fillers in polymer compositions, etching of the polymer is carried out in a plasma at a generator power of 100–200 W and in the oscillation range of 2–15 MHz, followed by measuring the geometric characteristics of the etching zones. For each polymer and filler, the optimal ratios of these quantities are different, and it is difficult to independently choose their values for unauthorized use of the method.
RU2199171 describes a piezo scanner comprising a set of piezo tubes that are connected to each other by flanges. The third dependent claim provides for a controlled shrinkage of the glue in a limited volume during solidification between the tubes and flanges, which is important enough for the reliability and stability of the piezo scanner characteristics. At the same time, the sizes of the solidification zones and the bonding regimes in the patent are not listed, which makes it much more difficult for competitors to reproduce the required characteristics.
RU2249263 protects a cantilever-design of multi-probe sensor for a scanning probe microscope. It describes the design of the sensor with the drives of the consoles, but says nothing about the technology of the formation of drives, although they are the most important elements of such a device. It should be noted that the principle of hiding the technologies for manufacturing the most important elements is common throughout the world, despite the fact that European and American experts require a detailed disclosure of ways to manufacturing of not even the most important elements. Inventors can cause inaccurate or insufficient information about processes, which patent experts are often unable to identify, since in most cases they do not have in-depth technical knowledge and do not have the technical means to test the working capacity of the proposed solutions (the same applies to Russian experts).
RU2312872 on the method for producing thermoplastic rubber indicates primary ranges of filler content of 25–45 wt %, ratios of polyethene and elastomer of 0.8 to 4.5, as well as a final filler content range of 2.5–19 wt %. It should be noted that patents on methods for obtaining substances and their compositions traditionally include extended ranges of values, so it is sufficient to hide know-how without advertising the required values and provide very broad protection. But it must be borne in mind that competitors can break these broad ranges into narrow subranges, identify additional technical results and obtain additional patents. Therefore, when patenting substances and methods for their preparation, it is expedient to immediately select subranges within wide ranges and to identify independent technical results in them.
The following method of concealing know-how is related to the features of the representation of the dependent claims. The most significant feature providing the maximum technical result can be located at a dependent point at the end of the multi-part claim without accenting on its technical results in the description of the invention.
For example, in RU2267787, the toxic proteins are detected on the increased sizes of clusters formed on the substrate after they interact with antitoxic monoclonal antibodies in the method for detecting toxic proteins based on scanning probe microscopy, as represented in the independent claim. And the ultrasonic effect, which increases the reliability of the measurement by removing the introduced impurities, is indicated in the dependent eleventh claim. At the same time, the optimal characteristics of such an impact are not deliberately given, and their violation can cause the investigated clusters to detach from the surface of the substrate and lead to the impossibility of detecting toxic proteins.
In RU2339036, a method for assessing vaccine quality, which is a development of the previous solution, is carried out by measuring also the geometric dimensions of the particles on the substrate. And the measurement of dimensions taking into account the frictional forces of the particle probe, which is very important for the recognition of impurities and for increase of the reliability of measurements, is indicated only in the ninth dependent claim. Moreover, neither the claims nor the description specifies the specific values of these forces, which will make it more difficult for competitors to use the method unauthorized.
In RU2560567 on the method of introducing target molecules into cells, variants of puncture of the array of cells by an array of microneedles are described, as a result of which the target molecules penetrate into the cells. The dependent thirteenth claim indicates the use of ultrasound at the moment of cell puncture without indicating the power and frequency of ultrasonic vibrations, as well as without highlighting the technical results in the description associated with this item. In this case, only the correctly chosen ratio of power and frequency of ultrasonic vibrations simplifies the punctures and increases the efficiency of the method.
A variation of this approach may be the exclusion of the most important feature from the claims, while retaining it in the description. You can go further and generally exclude the most important signs from the formula and description, leaving them just in case in general terms in the claims.
RU2244256 describes a multi-probe sensor of the contour type for a scanning probe microscope, but there is no important section of the description of the manufacturing technology of such a sensor. In fact, at the time of the invention of this sensor, the technology of its manufacture was not developed, but it was required to get a priority on the design. Of course, there is a risk that the sign will be detected by competitors and patented, as we have already mentioned. In the case under consideration, when the technology was created, an application was immediately prepared for it and a patent was obtained.
When drawing up licensing agreements under the described patents, their extensions are possible, taking into account the transfer of know-how.
Given the experience of Leonardo da Vinci in concealing the know-how in military technology, it should be noted that their patenting is necessary, since, firstly, Russian weapons are sold abroad and may be subject to foreign patents, and secondly, foreign companies patent their development in Russia and receive Russian patents. For example, rockets and airplanes are directly patented in our country by France [7, 8], the USA [9, 10] and even Australia [11]. On the question of the head structure on intellectual property of the Ministry of Defense at the Army-2016 forum about what they will do if they fall into Russia under the influence of foreign-owned patents of the Russian Federation, the essence of the answer was that the problems would have to be solved within the framework of the legislation.
It should also be borne in mind that military technology can be masked by civil technology when patented. As already noted in [12], patenting the methods of digital image processing in photoelectric, probe, electron, ion and X-ray microscopy, it is possible to simultaneously protect the methods of guidance of surface-to-air and air-to-air missiles. Already active is the patenting by foreign firms of similar digital technologies in Russia.
Thus, it is necessary to patent certain types of weapons, but it is, of course, expedient to hide the real secrets of production to the maximum. All the above principles of hiding know-how are applicable to military products, but additional disclosure of special information (for this, there are corresponding services at military enterprises) should be limited, and one can not touch at all principled solutions and patent only what can not be hidden during the demonstration military equipment, which many Russian enterprises are engaged in.
Thus, the concealment of know-how in patents is a solvable and justified task. However, it should be borne in mind that it is not always necessary. For example, in advertising and tender patents (details in [3]), it is not practical to hide know-how, since it can reduce the presentation component of such patents. In patents protecting the unimpeded production and sale of proprietary developments, including patent troll, the concealment of know-how can even be harmful, since patent trolling is conducted by sufficiently competent specialists who are able to identify and patent the hidden, completely stopping production, especially if these know-how are not properly documented. ■
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