What Came Before
Pentimento is the visible trace of an earlier painting beneath a layer or layers of paint on a canvas. It shows what the artist did before. Sometimes they are practice works for the current work on the canvas other times they are totally unrelated in terms of content but since they are from the same painter they provide insight into how their work developed, how their technique improved, what they were working on before the more visible work before you.
Patents have their own form of pentimento. Prior art is patent pentimento. Like its artistic counterpart, patent pentimento shows what came before, the inventor's view on what preceded their work. Invention isn't a straightforward or linear process. The invention before you, the patent or the patent application isn't always as clear cut as one might hope. The inventor's work has developed, the technique has improved, and like paintings, the inventor brings new colors and shapes and ideas to their work. No one knows this better than a patent examiner.
One of the aspects of prior art that is so hard to put your hands around is understanding where things come from, that sensation that you've seen this before, that the invention before you doesn't feel new, useful, or non-obvious, and you can't quite figure out why, at least from your current vantage point. Non-obvious, a phrase for which there are no entries in the dictionary or in a thesaurus, Rogets or others, being the most difficult to wrap your brain around sometimes. But as we enter into the informationization of invention where everything novel, useful, and non-obvious seems to have an information component to it and where the speed and granularization of scientific and technical discovery is accelerating at an exponential pace, viewing prior art as pentimento is important to understanding innovation, invention, and the intellectual property regimes that protect is. What came before.
Which brings us to a blog entry made today on the NY Times blog Bits, 3-D Printing the 19th Century by Amy O'Leary chronicling the exploits of Martin Galese, a 31-year-old lawyer in New York. Mr. Galese is using a 3D printer to recreate inventions and designs of 19th century patents. The article highlights his recreation of a flower stand, circa 1875 and an Improvement in Pot-Scrapers, US Patent 163,918 invented by Urias Cramer of New Philadelphia, Ohio in 1874, "… a convenient and handy device for scraping kettles, boilers, and similar utensils of any dimensions,having either straight sides with angles or curved sides of any radius…". This device looks remarkably like a 1980 vintage crevice cleaning device that was a free give away when buying Tupperware. (You can see some of Mr. Galese's 3D creations at http://patent-able.tumblr.com/ or at http://www.thingiverse.com/tag:patent.)
In an amazing case of patent pentimento, the 3D printer might just usher in the return to the model of a patented invention. Imagine if an inventor or a patent inventor could make a 3D version of the invention right there in beautiful downtown Alexandria, VA. Imaging replacing all the overly broad language gymnastics and patent mumbo jumbo with a physical thing. 3D printing might just be the next big thing in fixing the patent system, at least for those inventions in the mechanical and physical arts. Imagine being able to look at new inventions through the lens of patent pentimento by comparing what is described in an invention with the prior art in the physical world rather than in the theoretical world.
A 3D printer would have been useful when we worked on looking back at prior art related to green technology — windmills (turbines, nacelles, blades, dynamos), internal combustion engines, improved torque in electric vehicles, and perhaps our favorite, the new heat disbursing energy efficient commercial cookware. (8,037,602). In doing the research and looking at the patents there was this sense of been there, done that, especially when looking at all the wind and mechanical inventions. Imaginethe USPTO empowering an examiner to wander over to the 3D printer and crank up some 1890s vintage parts and then to make a version of the device in the application before them and hold the two of them in his or her hand while thinking about its novelty, usefulness, and non-obviousness. (We are allowed to dream people…) This could be so much more useful than all the exotic patent classification schemes in the universe and would replace the ridiculousness of those pushing for color in patent drawings. (We ranted about the idiocy of attempting to write the regulations for allowing color patent drawings and the meeting of the Red Green Blue Patent Drawing Consortium and standards development committee earlier.)
The introduction of 3D printing into the world of patent prosecution is clearly folly at this point but Mr. Galese's work makes you wonder if a $3,000 investment in 3D printers at USPTO might go a long way in making patent more discernible. Allowing the examiners and inventors to hold an invention in their hand, would go a long way toward clearing the fog of the patent argot. Nicely done Mr. Galese.