On Inventing vs. Patenting

“Being imaginary, it was unencumbered by the real-world details one would need for a blue print, an engineering specification or a patent application.”

Alan Turing on imagining a computer, a machine to compute numbers.

Coming Citation Crush

"The last decades have seen a significant increase in worldwide scientific publications, to about 1.5 million peer-reviewed science and engineering articles in 2008 produced by 218 countries – up from less than one million publications in 2000."

Source:  WIPO

Consider 1.5 million peer-reviewed science and engineering articles and the hunt for prior art.

There has been much discussion on the use of patent citations to understand how knowledge moves among researchers and inventors and then out into the world of products and commerce -  the spillover of knowledge from one domain to another.

Way Better Patents is working on new ways to use citations - patent and non-patent literature prior art references - to help you visualize how scientific publications and patents converge.

Please stay tuned.

Pandemonium In Patent Pendency

The precarious position of patent offices and patent pendence world wide portends continued unrest in the patent sphere and the potential decline in protection of precious inventions.  Please peruse the particulars.

In 2010, the number of unprocessed patent applications world-wide stood at 5.17 million.

As of 2009, the number of patent applications filed globally was about 1.8 million a year. (The last year the global number of patent application is available.)

In 2008, the US share of that number was 482,871, about 27%.

In 2010 the number of US patent applications hit 520,277.

In 2009 the USPTO granted 191,927 patents.

By 2010 the US number of patents granted hit 244,341 - less than half of the volume of new applications coming in the door.

In 2008 the global number of grants was 777,556.

The average patent pendency - the period of time between the time a patent application is filed to the time a patent office makes a final decision - is around 32 months.  This number is lower than the US average which stands at about 34 months.

The number of patents in force in the US as of 2009 was 1,930,631.  The global number is a confusing hodge podge of counts by national patent office that doesn't lend itself to compiling one consolidated number.

The bottom line is protracted patent pendency persists.

Race Against The Machine

Erik Brynjolfsson and Andrew McAfee published an ebook called, "Race Against The Machine: How the Digital Revolution is Accelerating Innovation, Driving Productivity, and Irreversibly Transforming Employment and the Economy."  At it's essence it offers economic and technical insight into why computers and information technology are irreversibly changing the employment and economic landscape of America and the world.

In a nutshell it's message is skills and technology rules.  Old school jobs for semi-skilled, high school educated people are disappearing and aren't coming back.  Entry level jobs that enabled people to gain a foothold in a company and work their way up have evaporated.  Mechanics need to be able to use computer diagnostics, high tech bar code readers recognize and sort package, ATMs replace bank tellers, and the nature of productivity is changing in ways we have yet to figure out.  Considering that Mr. Brynjolfsson and Mr. McAgee's ebook can be downloaded via Amazon and read on all manner of digital devices replacing printers, book stores, academic journals, and the whole food chain that goes along with it is an example of the very change described in this ebook with a very long title.

The Extra Ingredient

One of the biggest challenges in the patentsphere is solving the problem of information discovery.  There's a lot of information out there, and the quality of the data is not always great.  There is a practice of playing information hide and seek to describe things as broadly as possible to cover ever possible permutation of the invention now and into the future.  And it's hard to tell where a lot of it comes from, the data provenance predicament. Then when you finally find the information you need, then what?  How do you know it's factual and trustworthy?  A healthy dose of skepticism and good discovery and analytics go a long way.  Take the case of the extra ingredient.

Inventors are supposed to teach a person ordinarily skilled in the art how to build or make their invention.  If you are one of those people, you should be able to take the spec and make the invention.  But sometimes inventors insert a little negative know-how into the works to throw off the honorable competition.  Edmund McIlhenny of New Iberia, Louisiana did exactly that in his patent for the "Improvement on Pepper-Sauce" US Patent 107,701.  That pepper sauce based on the Tabasco pepper, know to us as the beloved Tabasco Sauce.

Negative know-how is the trade secrets that define what doesn't work.  Negative know- how is hard to detect and when attempting to practice an invention that isn't coming out exactly right, dismissed as a lack of skill or simply not getting it exactly right.  The Pepper-Sauce invention is an early example of the value of a little negative know-how.

Jeffrey Rothfeder’s book, “McIlhenny’s Gold: How a Louisiana Family Built the Tabasco Empire,” investigated the history of the McIlhenny family and their business, one of the oldest privately held family-owned businesses in the US.  In his book Mr. Rothfeder describes how the company’s founder, Edmund McIlhenny, modified one of the ingredients of the recipe for Tabasco Sauce in his patent application to throw off the competition. Writing about the company’s patriarch and his patent application, Mr. Rothfeder notes,

“ A drop of bisulphate of lime is added to every ounce received from the press. The two mixtures thus prepared are now put together, and the whole compound worked through a fine flower sieve. The sauce is thus completely prepared and ready for use. 

“McIlhenny had two reasons for patenting his formula. First a patent would enable him to boast, particularly in period before there were regulators to police truth in advertising, that this product was one of a kind created by techniques so original they were even endorsed by the U.S. Government…his second reason for obtaining a patent somewhat obviated the first. McIlhenney wanted the patent to thwart would-be imitators. So, he applied for it with a recipe that wasn’t precisely the actual formula for making Tabasco sauce. In other words, the patent McIlhenny received…was based on a false recipe, just misleading enough to sabotage anyone who attempted to use the patent as a crib sheet to copy the product. …According to McIlhenny historian Shane Bernard, “There are no records of his purchasing bisulphate of lime”

The 1870 patent is short by today's standards.  A list of ingredients - Tabasco pepper, a handful of rock salt, fine vinegar, and a drop of bisulphate of lime.  A method of preparation, and two claims.     It took over 100 years for this information to be discovered.  Long after the patent expired.  

The message is retain your skepticism, examine patent data with a grain of rock salt, trust your judgement and look deeper when things seem a bit off and be on the look out for the drop of bisulphate designed to throw you off course.

Indicia of Extortion

The latest update to the Way Better Patents collection of patent argot comes from real life patent practice exegesis from the patent assertion entity part of the patent landscape.  Judge Lourie for provided the eloquently phrased definition of this practice in the CAFC decision in Eon-Net LP v. Flagstar Bancorp.

Patent Argot is our term for the impenetrable wall of patent vocabulary.  Or as someone once put it, the process of taking English and turning it into something somewhere between engineering, science and legal speak with a few riddles blended in just for fun.  

An argot is, "a specialized idiomatic vocabulary that is peculiar to a particular class of people (the Intellectual Property and Patent Cognoscenti.)  Argot is sometimes defined  as a special language, especially that of an underworld group, devised for private communication and identification; a language with its own style, grammar, and vocabulary.  

Indicia of Extortion - filing nearly identical patent infringement complaints against a plethora of diverse defendants where the plaintiff (the guy filing the lawsuit) followed each filing with a demand for a quick settlement at a price far lower than the cost to defend the litigation.