RE: [ATM] flex produced optics and Patents 101

["mbyorick" <mbyorick@starband.net>]

John asked: 

> > Alan, who controls the patents has ...
> 
> Isn't this essentially the same thing that was described in an old atm
> magazine? By someone who deformed his blank and polished in a sphere
and
> released the tension, revealing an off-axis section of a paraboloid?
How
> could someone come along later and patent it?


The sole independent claim in the patent referenced above (U.S.
6,425,671 to Adler) reads:

1. A structure for holding and forming an optical mirror disc
comprising; 

	a puller attached to the back surface of the mirror engaging
said mirror though an elastic layer over a region having an outside
diameter of at least one fourth of the diameter of said mirror disc, 
	a tensioner applying axial tension to the puller, 
	a perimeter support engaging the perimeter of the mirror through
an elastic layer and reacting said axial tension into an axial
compression force acting on the perimeter of said mirror and flexing
said mirror into a desired optical shape. 

Note that the claim is fairly specific about at least one aspect of the
invention, namely, the puller being elastically attached to a
(circular?) region of the mirror having an outside diameter at least
one-fourth of the mirror's diameter.  The remainder of the claim is
rather broad in scope, as far as mechanical claims are concerned (e.g.,
any "desired optical shape").  

John does not describe the 'atm magazine' method with sufficient
specificity to allow a determination of whether it qualifies as prior
art with respect to the specific language of the claim at issue.  The
question is whether the alluded-to magazine article describes a method
or system which includes the claimed elements ('limitations') of a
'puller', a 'tensioner', AND the 'perimeter support'. 

However, if that "old atm magazine" article describes a system which
falls within the ambit of the above claim language (or which is broader
in scope), including each of the above-mentioned limitations, then the
claim is arguably invalid.  Nevertheless, the patent is not
automatically invalidated by the mere discovery of apparent prior art,
and an invalidity determination based on prior art (including
overbreadth) would require a decision from either the U.S. Patent Office
(in a reexamination proceeding that will take up to 5 years to
materialize), or from a Federal court in the form of a declaratory
judgment.

In the examination of the Adler patent, 14 previously issued patents
were cited, which appears to be a reasonable number of patent
references.  However, as in many, if not most, U.S. patent examinations,
there were NO non-patent publications cited.  This deficiency accounts
for most of the overly-broad, or just plain 'bogus' patents that
continually get issued by the U.S. Patent Office, since most prior art
exists in non-patent form.  However, apparently the inventor was not
aware of (under oath), nor could the patent examiner find (in his
limited search), any previously existing method or system that was
sufficiently similar to what is described in the claim above.

Furthermore, one cannot reasonably speculate that an unidentified
magazine article invalidates any U.S. patent, absent some important
specifics.  Finally, every U.S. patent automatically carries with it the
<presumption of validity>.  Even with apparent prior art in hand, it
ain't easy to get a patent invalidated!

Mike Byorick
In (relatively lawless) SW New Mexico

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