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December 12, 2005

Whitespace

Just finished an assignment from a patent-aware company, looking for whitespace in the patent landscape of financial services, to get a sense of where new patents may be generated. How refreshing from the head-in-the-sand, see-no-evil approach of some companies towards patents.

It's trite to observe that every company is in a competitive environment, and that a patent can be a strong card to hold or play. As a defensive shield and/or offensive weapon, patent accumulation as a vested strategy is a no-brainer. To optimally implement the strategy requires knowing the state-of-the-art landscape.

Some companies are afraid to know what patents are out there, as they short-sightedly fear willfulness. A clearing opinion can set such a fear aside, or suggest proactive licensing as insurance. Otherwise, hiring an outside consultant acting as an information curtain can allay wholesale risk of willfulness. But that's really beside the point, because, simply put, patents are the competitive edge, and any technology company that doesn't innovate is heading for the corporate boneyard.

The point is carving profits by inventing the future. As every savvy inventor knows, patents are best crafted by extensive knowledge of the art. Patenting is like playing jazz: take the basic tune and extend, spinning out new melodic lines. Improvisation requires a foundation. For patents, the firmer the foundation of knowledge in the prior art, the higher the probability of drawing an ace of patent protection. There simply is no other formula.

Only a uninformed cheapskate gets shot down by the patent office citing an invalidating patent on an application; it's only sensible to perform a patentability search. Why waste money filing without knowing what's out there?! [ Don't get me wrong - receiving a rejection that can be overcome is different than getting blindsided by a prior art patent that completely spoils an application, wherein the prior art patent would have turned up in a decent patentability search. ]

For corporate patenting, a good method is to inform an inventor of prior art via the results of a patentability search, allowing feedback and extension from the original patenting impetus. That widens the potential scope and realm of claim material.

My personal patenting formula is idea generation, then validation of patentability, and embellishment of claim potential, via prior art search. The more one knows of the art, the better the creative juices flow to extending there from. Many of my ideas don't pan, either as having been taken or whittled to the fringes of claim scope, but the method remains incontrovertible: look for whitespace.

Posted by Patent Hawk at December 12, 2005 12:01 AM | Patents In Business

Comments

"Patent Whitespace." Wow. I knew there must be commonly used term for the massive IP land-grabs that patent trolls embark on, but I didn't realize it was embraced so openly by the IP-maximalism crowd.

So here's an even better use of a company's money than hiring someone to troll through the patent database looking for obvious things in the thinkscape to monopolize: pay lobbyists in Washington to push for meaningful patent reform so that merely daydreaming about ideas is no longer a ticket to a 20-year monopoly of extortion by your competitors in the marketplace.

Sorry to break it to you patent hawk, but companies (especially high-tech companies that actually produce products) almost universally view this patent search/accumulation/litigation stuff as a necessary evil -- a tax they have to pay to keep doing business. But it is only necessary because the laws make it so. Pushing for reforms that free business to concentrate on innovating and allowing them to re-invest those resources into development is widely seen as a much better use of the money. What corporate CEO can you think of who says, "hey, you know what, I think we ought to spend more money on lawyers!"? That's right, none.

Posted by: joey5 at December 12, 2005 8:05 AM

It's becoming part of my morning routine; make coffee, feed babies, read joey5's latest rant. Maybe a little history will help me here joey, have you received one too many C&D letters or did stories of "trolls" upset you as a child?

"Patent Troll" didn't automatically come to mind when I read PH's article. I read about an innovative company using one of many strategies to identify areas for innovation. Reviewing the patent literature can be invaluable in educating an inventing team, directing resources to an underserved area and avoid re-inventing the wheel yet again. PH has always been very consistent in his respect for the prior art as a means to strengthen patents and eliminate the trash.

Could PH's client be a troll, sure, but his client was looking to generate patents, some refer to this as "inventing", a troll would be accumulating portfolios and, in his spare time, terrorizing children from under bridges.

Posted by: Norm at December 13, 2005 7:35 AM

Norm, I'm extremely flattered that I've become a part of your morning routine, and I'm glad to help liven the place up with a bit of debate from the other side of the coin.

We're all motivated by our self interest, aren't we? I, as an inventor, want to be able to invent. You, as a worker in the field of law [there's some conjecture back at you], want to be able to practice law.

I don't see "generating patents" as invention. I see it as generating patents. There is a huge difference.

Edison's light bulb was the result of trying *thousands* of different filaments until he happened upon one that was both bright and long-lasting. His invention was not a patent. If it were, he could have simply filed a patent with as broad of claims as allowable, waited for someone else to figure out which filament in which environment worked best, then sued the inventor of this thing and collected royalties. Is that the world we want to live in? Is that fulfilling the purpose of advancing the useful arts and sciences? I don't see how you can claim that it would be.

http://www.enchantedlearning.com/inventors/edison/lightbulb.shtml

(And yes, I know that Edison did his own share of patent extortion and unfair idea monopolization -- under a system like ours that encourages such behavior, don't we all turn into patent trolls eventually?)

Posted by: joey5 at December 13, 2005 10:06 AM