Did you know the U.S. Patent and Trademark Office (USPTO) is receiving six times…more patent applications annually than it did in 1980? Standing alone, this increase may not appear very remarkable, particularly if one considers the rise in patent applications does not translate necessarily to America becoming more creative and/or innovative and putting either to practical application.
In part, the increased number of patent applications filed-received at the USPTO…can be attributed to (a.) far more people residing in the U.S, (b.) the U.S. economy’ is substantially larger today than it was in 1980, (c.) the fact that foreign patent applications received by the USPTO have risen significantly, and (d.) as have repeat applications.
With respect to the latter, a patent application filed and received at the USPTO may, for various reasons, be rejected. Interestingly, 40+% of rejected applications will be modified and re-submitted to the USPTO.
Patent application content…as readers of this blog know well, must articulate ‘some thing’ that is new, novel, and/or non-obvious. This means a patent applicant has presumably developed ‘some thing’ which has unique components-ingredients which are not common knowledge.
As an example of this…let’s examine ‘utility patents’. Utility patents are respectfully of the ‘garden variety’ with the hope-expectation that the one who prepares-submits a patent application, genuinely believes they have developed ‘some thing’ that meets the aforementioned -requisites of being novel and non-obvious. This could include a machine, a process, a method, or perhaps ‘any thing’ which is manufacturable for a specific use, i.e., a new type of mousetrap, a better means to churn butter, or a new mobile app, etc.
An enticing claim by the USPTO, regarding utility and other types-categories of patents, is that if the application passes muster and a patent is issued, it is protectable for a period of 20 years, i.e., prohibits others from manufacturing, selling, or distributing a patented invention.
For the understandably ecstatic researcher-inventor…the presumption of patent enforcement and protectability (of an issued patent) is, through my experiences, routinely mis-understood-interpreted insofar as assuming there is some impenetrable and ethereal bubble surrounding the patent specifically designed to protect the its utility, i.e., functional aspects and features which lasts for 20 years!
My counsel to patent holders…is to encourage them to interpret the word ‘protection’ less literally. Instead in the context of ‘wishful (cross-your-fingers) deterrence’. In government (USPTO) speak, patent protection, translates somewhat more practically, i.e., as providing a patent holder with judicial standing to sue those suspected of engaging in infringement and/or misappropriation of their patent rights.
So, each patent holder has a (fiduciary) responsibility to have effective best practice safeguards…in place (prior to, during the application process, and upon and following the issuance of a patent for the duration. The primary objectives for these safeguards are to mitigate the vulnerability, probability, and criticality of the patent experiencing economic, competitive advantage, and/or market losses from occurring. To be on track to achieve this, each patent holder has a (fiduciary) obligation to be alert to, monitor, and rapidly and effectively respond to any-all indications (evidence) their patent, whole, or in part, is being infringed, misappropriated, or has otherwise been stolen.
Equally important, any explanation – discussion of patents…i.e., their content, and hoped for economic, competitive advantage, and/or humanitarian – altruistic outcomes, would be remiss, if the holder overlooked – neglected to recognize the integral and contributory role of intangible assets, i.e., intellectual, structural, and likely relationship capital underlying each stage of patent development, formulation, and execution. This is especially relevant in terms of understanding – distinguishing what, when, and how (intellectual, structural, and relationship capital) pertaining to the patent, should be safeguarded.
There is little difference between patents and proprietary intangible assets…in fact, patents are merely one type-category of intellectual property (IP) which include (patents), trademarks, copyrights, and specific proprietary information designated as constituting a trade secret. Furthermore, each category of IP is a subset of the broader category known as intangible assets, i.e., variations and collaborations of intellectual, structural, and relationship capital.
The distinction between a favorably reviewed patent application, i.e., a patent issued by the USPTO, is that a patent then assumes a tangible – physical property…insofar as the certificate issued by the USPTO acknowledging its registration can be framed and prominently hung on an office wall as a testament to the patent holder’s, usually collaborative, intellectual, structural, and relationship capital ala intangible assets.
Frequently, much to the vexation of intangible asset strategists and risk specialists, as I…intellectual properties, patents particularly, are touted as the presumptive ‘brass ring’ which (university and private sector) researchers and inventors are variously obliged to aspire. Being issued a patent does convey professional expertise and credibility, to be sure. However, both may be short-lived if – when asset safeguards and patent monitoring are neither in place or being effectively practiced.
My years of experiences in R&D arena suggest that rationales for patent only research tracts…may be advocated – and/or perceived best when there is no intangible asset strategist (risk specialist) in the room to help articulate and explore viable – practical options which carry substantially less risk. Deference is often given to patent (only) strategies rooted in the time-honored perspective that an issued patent is protected and conveys a sense of ownership and legal standing. Assuming the former is no longer wise, because, in most instances it is no longer a matter of if, rather when, infringement and/or misappropriation will materialize – be undertaken by global competitive advantage adversaries, of which there certainly is no shortage.
Michael D. Moberly February 6, 2017 St. Louis firstname.lastname@example.org ‘A Business Intangible Asset Blog’ where attention span really matters!