Soak and Pounce: 1920's Style Submarine Patents

"the practice of letting an application soak in the office for years until the trade had independently developed the invention, when the applicant would come out with a divisional application and pounce upon the unfortunates who had proceeded to build up a business on the invention."

"the complaint is that applicants were using the Patent Office's procedures to lie in wait while industry invests in technology, then emerging with claims calibrated to capture those investments by others."

"Synnestvedt's brief on behalf of Wintroath made an argument that would sound familiar to anyone who has followed the prosecution laches debates of the past two decades. He described the Patent Office practice of allowing divisional applications on features shown and described but"

The Chapman v. Wintroath case from 1920 reveals early concerns about what would later be termed submarine patents. The Chapmans filed a deep well pump patent application in 1909 with 34 claims but faced unusual Patent Office difficulties. Six years later, after John Wintroath independently filed and received his own patent in 1913, the Chapmans filed a divisional application copying Wintroath's claims to initiate an interference. Wintroath's counsel Paul Synnestvedt termed this practice "soak and pounce," describing applicants using Patent Office procedures to wait while industry invested in technology, then emerging with calibrated claims to capture those investments. This historical practice predates modern submarine patent terminology.

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