I've got a lot of experience with patents, and to be honest the fact that the XBL patent was granted in the US in spite of earlier almost identical prior art isn't the least bit surprising -- and I'd say that the XBL patent should not have been granted given this prior art, any improvement is "obvious to one skilled in the art" and it should have been rejected.
The US patent examination process is less rigorous (and cheaper) than pretty much anywhere else in the world, the approach is basically to grant the patent and let the lawyers fight it out afterwards. Since it takes typically $5 million to bring a patent lawsuit in the US, only those with deep pockets and a lot to lose end up fighting it out.
They don't even do thorough searches for prior art within the patent system, never mind outside -- I've had a US patent granted only to see a patent for the exact same invention granted to another company 2 years later. And their understanding of technical content is often poor to say the least, I had one US patent where the examiner just basically misunderstood the subject, and after a lot of back-and-forth argument we had to go to the patent court to argue our case -- and a week before the hearing, the examiner's refusal to grant decision was over-ruled by their supervisor.
Now we always file through the EPO (European patent office) first; their technical understanding and examinations are much better and more likely to throw up any genuine prior art, which in the end means a stronger patent.
Hi all,
When we did the XBL patent search, we came up with the Babb patent (and it's listed in our prior art list, in our patent). At first, I was crushed - but then my patent attorney (who practiced as a patent examiner for more than a decade, before getting his JD and becoming a patent attorney) pointed out this disclaimer in the Babb patent:
Such an arrangement provides no practical advantages, however.
Basically, the known art at the time - the Babb patent, in particular - taught that XBL would NOT work. That it has no advantage at all. Thus it was disclosed BUT taught against, meaning that if you could prove it DID work, then your proof made the concept novel and non-obvious (for it was taught against).
Basically, if Alan had left that quoted sentence out, we would not have gotten the XBL patent, and dual gap designs might have arisen much earlier than our re-introduction and proof of actual working in late 2001 with the release of the Brahma subwoofers.
When we did the XBL patent search, we came up with the Babb patent (and it's listed in our prior art list, in our patent). At first, I was crushed - but then my patent attorney (who practiced as a patent examiner for more than a decade, before getting his JD and becoming a patent attorney) pointed out this disclaimer in the Babb patent:
Such an arrangement provides no practical advantages, however.
Basically, the known art at the time - the Babb patent, in particular - taught that XBL would NOT work. That it has no advantage at all. Thus it was disclosed BUT taught against, meaning that if you could prove it DID work, then your proof made the concept novel and non-obvious (for it was taught against).
Basically, if Alan had left that quoted sentence out, we would not have gotten the XBL patent, and dual gap designs might have arisen much earlier than our re-introduction and proof of actual working in late 2001 with the release of the Brahma subwoofers.
funny, I noticed that too
and was a bit confused why they disregarded it that way
well, to be honest, it was a bit unclear to me what exactly they were referring to
Thanks for joining Dan!
That sentence refers to the use of a significantly larger quantity of gaps or coils than two to form a motor with infinite linearity, or to use Babbs own words:
I am sorry, but given the fact that the XBL patent was written mainly focusing on two gaps, the situation has to be one of the two:
1: The patent investigator did not understand Babbs patent at all.
2: When filing the patent, the plan was for no one to discover it was prior art by leaving fig 9 of Babbs patent out and focusing on the configuration in fig 3 instead.
That sentence refers to the use of a significantly larger quantity of gaps or coils than two to form a motor with infinite linearity, or to use Babbs own words:
I am sorry, but given the fact that the XBL patent was written mainly focusing on two gaps, the situation has to be one of the two:
1: The patent investigator did not understand Babbs patent at all.
2: When filing the patent, the plan was for no one to discover it was prior art by leaving fig 9 of Babbs patent out and focusing on the configuration in fig 3 instead.
Hi tinitus,
Alan had some interesting theories about how to make speakers work (see his spaced coil windings approach, for example) and I think some of that went into his patents. In this case (multiple gaps), his patent claim was provably wrong, and the USPTO requested we provide actual B or BL data - which we did (the BL curve in FIG 11).
Snickers,
We disclosed the Babb patent, and specifically referenced it as well. The USPTO interpreted the Babb patent as showing what could be done - but also teaching that such an approach does NOT work. Thus actually making it work is non-obvious and novel since those skilled in the art (meaning educated in and aware of prior art in loudspeakers) would not go down the path we did to make it work.
There's considerably more to the story than shown in just the patent publications; filing a US patent is a multi-year effort, with several back-and-forth question and answer sessions with the USPTO. We submitted many more claims than were allowed, for example, and needed to address several other patents the USPTO thought we should consider, such as the referenced Van Gelder and Button patents.
And the USPTO also considered just what did Babb actually use from his patent - TTBOMK and searches of actual product, Babb never built and sold the multiple gap designs - it was the spaced coils that was used. That further reinforces the USPTO conclusion that Babb specifically taught against using multiple gaps rather than spaced coils.
I'm not a patent attorney but I remember the USPTO's take on this - we provided full disclosure, and they were the ones who said "allowed" because prior art - the Babb patent - taught against what we did.
Alan had some interesting theories about how to make speakers work (see his spaced coil windings approach, for example) and I think some of that went into his patents. In this case (multiple gaps), his patent claim was provably wrong, and the USPTO requested we provide actual B or BL data - which we did (the BL curve in FIG 11).
Snickers,
We disclosed the Babb patent, and specifically referenced it as well. The USPTO interpreted the Babb patent as showing what could be done - but also teaching that such an approach does NOT work. Thus actually making it work is non-obvious and novel since those skilled in the art (meaning educated in and aware of prior art in loudspeakers) would not go down the path we did to make it work.
There's considerably more to the story than shown in just the patent publications; filing a US patent is a multi-year effort, with several back-and-forth question and answer sessions with the USPTO. We submitted many more claims than were allowed, for example, and needed to address several other patents the USPTO thought we should consider, such as the referenced Van Gelder and Button patents.
And the USPTO also considered just what did Babb actually use from his patent - TTBOMK and searches of actual product, Babb never built and sold the multiple gap designs - it was the spaced coils that was used. That further reinforces the USPTO conclusion that Babb specifically taught against using multiple gaps rather than spaced coils.
I'm not a patent attorney but I remember the USPTO's take on this - we provided full disclosure, and they were the ones who said "allowed" because prior art - the Babb patent - taught against what we did.
The arrangement that Babb considers to not offer any practical advantage is clearly the use of two coils spaced apart in combination with several magnet gaps. That is pretty far from the XBL-patent.
The fact that Babb did not use the techology in any products does not change the fact that it is prior art. Also, Babb shows what impact the technology would have on the BxL curve with impressive accuracy, and he never questions the practical advantage of the technology either with dual coils or dual gaps. He also states that the effect of dual coils is very much like the effect of dual gaps, a statement that has later been proven countless times.
Since he both states that the effect of dual gaps and dual coils is pretty much identical, shows the practical advantage with impressive accuracy, and later builds a number of products incorporating one of the versions of this technology, you need to be really creative to end up with a conclusion that he was convinced that it did not work. 😀
The fact that Babb did not use the techology in any products does not change the fact that it is prior art. Also, Babb shows what impact the technology would have on the BxL curve with impressive accuracy, and he never questions the practical advantage of the technology either with dual coils or dual gaps. He also states that the effect of dual coils is very much like the effect of dual gaps, a statement that has later been proven countless times.
Since he both states that the effect of dual gaps and dual coils is pretty much identical, shows the practical advantage with impressive accuracy, and later builds a number of products incorporating one of the versions of this technology, you need to be really creative to end up with a conclusion that he was convinced that it did not work. 😀
Well, what can I say - the USPTO saw differently, and we disclosed to them the Babb patent right up front (it's number 4 in the referenced patents in our own patent). You and I may disagree with the USPTO on many things, but they're the ones who issue the patent, and ultimately make the decision. They're the ones who's sole job is to evaluate applications for patentability and prior art. In this case, the examiners (there were two) didn't see any problem with it, and specifically stated it was because Babb taught against what we did. So, in that case, it's your conclusion against theirs - but theirs is the one that matters...😉
FWIW, our original patent application had 3 sets of claims, with a very broad scope, a mid-size scope, and a narrow scope. This is a common approach - you typically get the broad tossed, and sometimes the mid scope as well. In our case, the USPTO tossed the narrow and broad, and kept the mid scope. Why? I haven't a clue, but then I'm not a patent lawyer and examiner (and I presume you're not as well? 🙂).
FWIW, our original patent application had 3 sets of claims, with a very broad scope, a mid-size scope, and a narrow scope. This is a common approach - you typically get the broad tossed, and sometimes the mid scope as well. In our case, the USPTO tossed the narrow and broad, and kept the mid scope. Why? I haven't a clue, but then I'm not a patent lawyer and examiner (and I presume you're not as well? 🙂).
I am not sure about that. For use in marketing, getting the patent approved indeed adds a value, but in court, the examiners does not defend your patent, and much less make the decision in the end.
A lawyer attacking your patent would probably also point out that the reference to Babbs patent did leave out the part that described the use of multiple gaps and only included the multiple coil description. If you state that this was done on purpose, you have probably lost the case already. If you state that this was not done on purpose, it will appear as if you have not investigated Babbs patent properly, and that would not sound all that good either.
Not sure about the USPTO routines, I am pretty confident that any European patent investigator would require a thorough description of that part (fig. 9 of Babbs patent) and even how a statement can be made that Babb did not believe it would work, in particular, quoting the sentence in question.
So the interesting question is: How can you go to court with it? If you can't, the patent is close to worthless.
Well, all I know is that several large companies have licensed, and they certainly looked over the patent and what is covered, and the referenced art (in fact, several have asked us about using split coils AND split gap, after finding the Babb patent via our patent).
Every country has their own patent laws and requirements, and the standard for proof against an issued patent is pretty high, and I'm not a lawyer so I'll leave it at that...
Every country has their own patent laws and requirements, and the standard for proof against an issued patent is pretty high, and I'm not a lawyer so I'll leave it at that...
And that is a good place to leave it. The patent holder has explained the process of getting this granted, as well as the prior art.- Status
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