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Patently Absurd

The economy continues to lumber along, perhaps turning a corner without actually creating much in the way of new jobs.  We never know just where we stand until it’s in our rearview mirror..  One thing that has perked up lately is talk about innovation as a way out of the mess we’re in.  Obama is pitching $30B for small business lending on the grounds that this is where innovation, and thus jobs, are created.  So far, so good.  But the spirit of innovation in the USofA needs a lot more than that if it is going to be the engine of new growth and new jobs.

I’m happy that we’re talking about innovation because it is a small acknowledgement that some kind of restructuring is necessary to get us moving again – basically, that we’re gonna have to do something different.  If that includes highly technical areas we have a lot more to do than talk.

I know of three different ideas right now being promoted by three different people that are looking for an investment in little more than the lab space to prove their ideas.  What they have can fancifully be called “intellectual property”, the product of their minds waiting to be recognized and put into use.  That’s a long, tough road.

An idea is just an idea.  In order to make it into “intellectual property” you have to “reduce it to practice” or show that it works. You then have to “teach” it in the right legal document known as a patent before the government recognizes this as something you can call your property.  From there, you own it for 20 years from the day of first filing.

There are many hurdles that have to be overcome.  The law itself is based on whoever files the invention first, and to do that you have to prove that it works.  For those of us with chemical and materials backgrounds, that means that we have access to the tools necessary to do this.  Nevermind that 20 years is nothing compared to the extended protection given to songs or books – we need more than a piano or a keyboard to make something that can ever be defined as property.

Even with access to the tools of the trade, patent filing is a tricky thing.  I recently realized that I learned from some of the best in the biz while I worked at 3M, writing patents on my own work that have already stood up against lawsuits.  I’ve read a number of patents recently to help understand the “prior art” in an area that were rather poorly written.  More than knowing your way around the lab, you have to know how to write it up or pay someone to do it for you.  That’s another barrier.

The US Patent and Trademark Office is currently taking about five years to grant patents.  That’s an eternity to a small business.  You can always use “patent pending”, but the long timeframe has encouraged big players in any field to write their way around something that is filed and claim their own territory.  The Patent Office is horribly under-staffed and swamped, so don’t expect anything in the way of guidance.

Why are so few people involved in patents and patent writing?  The technical nature of it makes it hard to get into in more ways than one. Albert Einstein once served as a patent clerk, doing nothing but reading patent filings all day long.  He wound up so bored out of his gourd that his mind wandered into musings about light and other dimensions, which as we all know became remarkably productive.  But it’s still a mind-numbing slog to understand the state of any art in any technical field.

The best solution to many of these issues probably comes at public colleges.  Imagine an open forum where students learn technical writing and legal skills by doing, and graduates with a few ideas have access to the space that is needed to make it happen.  What stands in the way of this are turf battles and a general disinterest in intellectual property at most schools.  I never learned about intellectual property law at Carnegie, and I suspect that it still isn’t taught in most places.  It’s just that uninteresting.

So what are we left with?  A lot of good ideas floating around that can’t make it past a number of hurdles that involve turf, legal wording, and good old fashioned tedium.  None of this will be solved quickly, meaning that “innovation” is at the very least not a quick-fix to our situation.  It may be a good to encourage new ideas, but we need a lot more than good words and a few bucks to do it.

25 thoughts on “Patently Absurd

  1. It is very hard to get a patentable idea worked up, written up, and filed these days in anything other than “soft areas” like computers. You are right to call attention to this terrible state of affairs. Thank you.

  2. It would help a lot if the push for innovation would include funding for the Patent Office to (1) catch up on the backlogs; (2) hire more people; (3) hire more competent people; and (4) somehow retain those people. The turnover there is incredible, largely due, I’m sure, to burnout. Something must be done about this.

    It would also help a lot if there were grants (maybe there are and I don’t know about them) for small businesses/sole proprietors to advance their ideas. Money is the big wall that prevents most people from following up on their ideas. And these days, big companies won’t even look at your idea until you’ve gotten a patent on it already.

  3. Like so many things, it’s all about talk. This is a problem I have not heard about, but I am not surprised. It’s just one more way that we talk all the right things but never get anything done in this world. If good ideas are going to waste we have a serious problem.

  4. Thanks, everyone.

    I agree with Molly that the best thing the Feds can do is properly fund the USPTO and work off the backlog. After that, some kind of office that helps people get over the hurdles would be just heavenly (but I’m not holding my breath).

    Annalise, you make an excellent point that this isn’t as big a deal with “soft tech” like computers. We’ve given one area of research a big advantage over others with all these barriers to entry. It’s something to think about.

  5. Very good article wabbit, this is probably one of your areas of strength with your engineering background and all. I’ll ask an Obama question “if it is so helpful (i.e. to staff the patent offices) why isn’t it being done? Money&funding/power&politics etc.. Anyways I’ve been doing a little initial study/reading on Mediterranean family structures (more horizontal and kin vs. English blood lines and solipsism) maybe I’ll copy/write some readin thats interesting on it someday (soon?) Their workday was shorter also.
    Once again the #1 Bollywood 3 idiots movie was all about innovation the unconventional star student challenges the Dean twice in the very first day.

  6. The National Review is making a push again for lower wages as the cure. They are also using the race card helpfully and not helpfully. Change is slow. Its easier to call a kettle black or throw stones.

  7. I don’t know why no one has ever given the USPTO the resources it needs. It’s been this way for a long time, as far as I know. It’s one of those things that never makes the radar, for whatever reason.

    I can tell you that in the absence of careful review, I sometimes have the feeling that they approve just about everything that doesn’t have obvious mistakes, with the understanding that if there is a conflict it’ll be up to the lawyers to sort it out in court. So if anyone benefits from the current situation, it’s lawyers. Go figger.

  8. Patents are only one part of the problem. When capital is tight, it’s hard to get money for anything other than a ‘sure thing’. Patient money has become harder and harder to find. You basically need to be tied into a bigger company from the start, which means that you’re out there taking the risk while they wait for the reward. I can’t tell if that kind of entrapeneurship (sp?) is freedom or slavery.

  9. I think most patent examiners do try to do a good job and don’t just pass anything that looks good enough. Actually, they get points (which later translate into money) for rejecting applications and making the applicant argue their case. Many times applicants end up paying for a RCE, a request for continuing examination, which is basically paying a new filing fee all over again, to be able to keep arguing. It’s a racket designed to make more money for the Patent Office! Maybe sometimes it’s legit, but I don’t think so overall.

  10. Molly: Thanks for the correction. I wasn’t aware that they had incentive to reject patents. Perhaps I just have really high standards, but I’ve seen a few that I didn’t think deserved to be issued. I feel better about things now. It’s good to have an expert / insider in the field correcting me! 🙂

    Anna: I can’t imagine getting startup capital right now. If you could tell us some more about the status of Angels, et cetera, I’d appreciate it. I am going to be working with someone on a strategic plan for leveraging a good idea into some real money, so I do have a personal interest. All I can think right now is to play this as some kind of poker game. Ug.

  11. Hi Erik,

    Have you read this in the Feb/2010 Wired magazine? http://tinyurl.com/ybg3d8d

    Also, I wonder, have you investigated the possibility of filing for patents in places other than the USPTO, like the EU? I’ve no clue what the processing time is there but I know that a patent a patent is and the USPTO must acknowledge their precedence and validity if issued by an accredited overseas office. Perhaps when the processing of patents start migrating overseas, the USPTO, and the government du jour, will get a clue and fund it properly.

  12. EU filing is expensive! You have to be sure of your market research and know that your product will be successful there. Once you’ve done your market research and still want to go into those countries, one way to get a foot in the door and just see how it might be received is to file a PCT (Patent Cooperation Treaty) application, which get you some basic searching and an opinion on your application. You have some time from filing a PCT to decide if you’re going to “go national” and actually file in some of the member countries (in the meantime, your priority date would be the filing date of the PCT, or of a provisional US application if you filed that first). If it looks good then you can file in the EU, which, again, is expensive for several reasons.

    Also, an EU patent cannot be enforced in the United States. A patent is only a patent in the country that issued it.

    Back to provisional filings–they are a relatively cheap way to get an earlier filing date–they don’t get examined and you have one year to decide whether to file a “real” (utility) US application or a PCT application. Many companies do this as a foot-in-the-door to get the date while they complete R&D and market research.

  13. Fine on the expenses. I’ll take your word for it but filing with the USPTO isn’t cheap either, specially when you add the expense of professional help to do it. And let’s face it, not everyone has the knowledge to do it by themselves.

    Now, this begs a question:

    >>Also, an EU patent cannot be enforced in the United States. A patent is only a patent in the country that issued it.<<

    Well, that kind of logic is very insular, IMO, under the light that we live in a world that is smaller by the second and trade knows no borders. I suppose that, all things being equal, a U.S. patent cannot be enforced in the EU either, right? If, by chance, I'm wrong, then that's something that is yelling for an international review. It would be ridiculous to assume that the USPTO is THE world's patent office, with enforcing powers, etc. I mean, I don't have the knowledge to argue some fine points but, if the status quo calls for something else than that logical argument, then it is a paradigm that must be altered.

    Mind you, I'm aware that IP, including patented goods, are stolen and abused on a regular basis, in the U.S. and internationally. That reality, however, does not preempt the existence of an international even playing field under the law, where a patent's precedence, when issued anywhere, is acknowledged by every other body. Otherwise, what's the point of filing patents? Just for the sake of future litigation?

  14. Don’t answer that last one? Knowing that most lawmakers everywhere are also lawyers, I know the answer… 🙂

  15. Luis,

    As I said, a patent is only enforceable in the country that patented it. No preference is given to any country–if you didn’t patent it in the country where an infringer is making and selling it, you’re out of luck. If post-it notes were not patented in Uganda, someone there can make and sell it within Ugandan borders as much as they wanted to, and 3M could do nothing about it.

    With the Patent Cooperation Treaty, we came closer to globality (is that a word? hehe) and maybe someday it will happen–I think that wouldn’t be a bad thing at all. But for now, marketers and company strategists must focus on patenting in the countries where they are most likely going to be able to sell their product, and where they have competitors. It’s about how much they want to spend and how much they want to gamble on odds.

    If you want to talk about litigation, then an even international playing field would open up a Pandora’s box of litigation and the lawyers would love it! For now, we are limited to suing those within the counties we have patents in. If it were opened up to worldwide patenting (as I believe you were referring to), then anyone could be sued for infringing.

    And yes, basically the point is filing patents IS to be able to litigate successfully if someone infringes. If you have no intention or ability to enforce your patent, it is only worth the paper it is printed on. No wonders so few individual inventors can compete!!

    • >>And yes, basically the point is filing patents IS to be able to litigate successfully if someone infringes. If you have no intention or ability to enforce your patent, it is only worth the paper it is printed on. No wonders so few individual inventors can compete!!<<

      I stand corrected. However, I believe inventing something that has only the USA in mind, and thus a US patent as a goal, and possible US enforcement and litigation, would be very shortsighted. In any case, I still suggest a reading of that Wired article. The paradigm I mentioned earlier is changing as we speak. Many inventors are not allowing concerns over filing patents to stop them from, well, inventing… I doubt any of them is waiting for the quoted 5 years of processing time to go ahead with their plans. That would be akin to "paralysis by analysis." Many still are going overseas for manufacturing and being competitive in our marketplace, which is being pragmatic in the global world we live in.

  16. Luis:

    You can file what’s called a “World Patent”. There is some reason it’s not desirable, but I can’t remember what it is. 3M never went this route. It’s based on agreements between a lot of nations.

    If you want to file a Euro patent, the big hurdle IMHO was writing the description in English, French AND German. They have to match! For one of my patents that I handled myself I was fortunate enough to have on the team a guy in Antwerp who did the French, and my German was checked by someone in in our Bavaria location. THEN, and only then, was it shipped to our multi-lingual lawyer in Brussels! If it wasn’t with a big company, there’s no way I could have gotten it together. There was a real lack of fun in the whole process. 🙂

    I can imagine a person writing a patent on their own in the US, but you have to be fearless and dedicated. Compare this with how we do copyrights for songs, which is to say that you put a li’l (c) at the bottom of your score with the date and vióla! Granted, the two are not comparable, but when you think about how long the copyrights last compared with 20 years on a patent, it really starts to look like we have our priorities a bit …. well, at least strange.

  17. WO patents (what you get from a PCT application) aren’t really individually enforceable in any country. They just open the door to file in member countries and can make it much easier to get patents in those countries–sort of a “blessing” of sorts. I know, it’s weird.

    Yeah, most companies pay for translations in the member EU countries. It is so expensive–when I worked at Medtronic I asked why they didn’t just employ translators to do the translating at a much lower cost rather than have our overseas lawyers coordinate it over there for us. Never did get a really good answer for it but I think they just don’t trust it to be completely accurate unless it came through an associate in that country.

  18. I agree that it is shortsighted, but a lot of commerce is done within US borders, and you’re still preventing anyone in the world from infringing on your product in the US. So that’s something. It usually boils down to the market research and willingness to gamble, and sometimes on differences in country patent law, among other things. Getting a US-only patent is not at all uncommon.

    If inventors are investing in their inventions and going forward without patenting, they are risking everything. Someone with a patent can come along and shut them right down and even win damages on top of it. That seems foolish to me.

  19. >>If inventors are investing in their inventions and going forward without patenting, they are risking everything. Someone with a patent can come along and shut them right down and even win damages on top of it. That seems foolish to me.<<

    My apologies. Perhaps I phrased that wrong. I'm not saying that there isn't a need to file for a patent, here or anywhere where is necessary. What I tried to say is that no one (well at least those that were quoted in the article) is waiting for the full process of filing a patent, and it to be granted, to go ahead with manufacturing. A search of the USPTO's database, by themselves or by qualified professional help, could assure them, prima facie, that they are on solid ground as far as precedence of their invention is concerned. From then on they can go ahead with their plans, which includes the filing of a proper patent, etc.

  20. Agreed, Luis, if one is fairly sure of themselves it would make sense not to wait for patenting, but to add “patent pending” to their product and go ahead. There’s always the danger no patent will be granted, but you don’t get anywhere without risk these days!

  21. I’m working on a patent right now that requires us to respond to another patent issued in 1997. The long and short of it is that the one I have to respond to should have never been written, but I’m glad it did because it talks around the work I’m dealing with – giving us a “surprising result” in the lingo.

    Funny stuff. What I think is a big screwup is really a golden opportunity!

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