Background

The Background section has historically been used to describe the "state of the art" at the time the application is filed. Most patent attorneys appear to follow that practice, and examples abound of very lengthy summaries of the field.

In my view such longuers are just a waste of time. Indeed, I often wonder about patent attorneys who insist on drafting long-winded Background sections. Are they trying to establish their great knowledge of the subject matter, and thereby impress their clients or colleagues? If so, the attempt usually falls short, degenerating instead into either sciolism or pedantry. It does nothing to get the claims allowed.

But just as a tour-de-force of the prior art is not very helpful in getting the application allowed, the reverse is also true. Some attorneys write only a sentence or two for the Background, providing little more than a restatement of the Field Of The Invention. In doing so they miss out on a marvelous opportunity to instruct the reader, whether patent examiner, judge, jury, or competitor, to understand where the current invention fits into the evolution of the technology, and why it is inventive relative to the prior art. Laziness should not be mistaken for cleverness.