Monthly Archives: May 2010

Have a Pending US Patent Application? There’s Never Been a Better Time to Make a Deal with the Patent Office

The US Patent Office is in a deal-making mood.

The US Patent Office is in a deal-making mood.  Really.  Ever since Director Kappos told his examiners last Fall that “patent quality does not equal rejection,” I have heard many stories about how patent applications that appeared to be stuck in the limbo 0f serial rejections are now being allowed.  Those of us who talk about such things online are in agreement that we may be operating in an unprecedented favorable environment of patent allowances.   The data bear out this anecdotal evidence:  patent issuances are up 35%  this year over last year.

My sense of what is happening, which has been confirmed by other experienced patent folks to whom I have spoken, the perspective of the Patent Office has changed.  The consensus is the U.S. patenting process is much less adversarial today.  In recent years, examiners were effectively told by the Patent Office administration that “there needs to be a reason to allow an application.”  This has now changed to “there needs to be a reason not to allow an application.”  This is a subtle, but critical, difference.  In the former viewpoint, the gate for allowance is closed and needs to be opened prior to letting the applicant pass through.  In the latter, the gate for allowance is open and needs to be closed in order to deny an application.

This change in perspective has resulted in many cases tied up in the Patent Office with “bogus” rejections being allowed for no apparent reason.  Is it possible that SPE’s (i.e., Supervisory Patent Examiners) are reviewing cases and telling their staff to allow cases where the prior art does not suffice as a suitable rejection?  I think this is the case in many art units. Continue reading

Patent Information is a Necessary Calibration Tool: How the Pilgrims’ Journey is a Metaphor for the Innovation Process

Use proper calibration to make sure your innovation processes end up in the right place.

Regular readers of this blog will recognize that I am a strong advocate of the use of patent information in the front end of innovation processes.  (More on this here, here and here.)  Relatively few innovation professionals actually do so, however, likely because it can be difficult for innovators to understand how to change the longstanding paradigm where lawyers are perceived to be the people who “put the ‘no’ in innovation.”  Put simply, I find that innovation professionals prefer to leave anything smelling of legal advice out of the front end of their processes because they think they will not be able to do their jobs if the lawyers show up to their meetings.

Of course, it makes little sense for innovation professionals to make significant business decisions involving new products or technology without also knowing whether they will be able to own the fruits of their innovations or whether a competitor will be able stop them from moving forward.  To this end, I have been working for sometime to develop a metaphor to demonstrate how the use of patent information can improve the outcome of innovation processes.  And, I think I have succeeded in doing so–in one word:  PILGRIMS.

Yes, I think the use of patent information in the front end of innovation processes is much akin to the Pilgrims’ journey to the New World.   Specifically, the Pilgrims did not intend to end up in Plymouth, Massachussets when they left England.  They instead wanted to end up in Manhattan.  But, a very small calibration error on the front end of their journey caused them to deviate from their intended destination.  This error resulted in their ending up in a much less hospitable place (at least in the Winter time).  Moreover, their “competitors”–the Dutch–ended up in Manhattan in their stead.  It took many years, and considerable effort, for the British to acquire Manhattan.

Applying this metaphor to the front end of innovation processes, we can say that, when used with other metrics, patent information can improve calibration.  Significantly, this information cannot tell one where the innovation process will end up or whether the product or technology will be a gangbuster when it hits the market.  Patent information can nonetheless give one a signal of whether the innovation process will be limited by third party patent rights or whether ownership is likely.

I discuss this in more detail in this YouTube video prepared for the Baldwin-Wallace Open Innovation Forum at which I will be attending on May 18, as well as this presentation that I made at PaperCon 2010 on May 4, 2010.

So far, I have seen the proverbial “lightbulb go off over heads” when I compare patent information in the innovation process to the Pilgrims’ journey to the new world.  I invite others to let me know what they think about this framework, as I believe it is critical for we patent professionals to be better able to speak the language of innovators so that they include us into their processes.

Photo: Flickr/Glacial Wanderer