Inventors – Entreprenuers Are Obliged To Know This About Patents

The U.S. Patent and Trademark Office (USPTO) is receiving six times…more patent applications annually than it did in 1980?  To be sure, the conventional IP (intellectual property) arena has experienced massive growth the 38 years hence.

However, standing alone, this significant increase may not be as quite as remarkable as initially perceived…especially, should one consider this rise in submitted patent applications does not consistently translate on a ‘one for one’ basis, i.e., for every patent registered-issued, a sustainable business is born.

There is certainly no cynical intent here to signal the rise in patent applications is not ‘a good thing’…however, the increased number of patent applications filed-received at the USPTO can be variously 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 at some point.

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.

An example of this…are ‘utility patents’. Utility patents, respectfully, are of the ‘garden variety’.  There is an expectation that the person, person’s, or company that prepares and submits a patent application, genuinely believes they have developed ‘some thing’ that meets the aforementioned requisites, i.e.,  novel and non-obvious. Conceivably, 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 their 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 who is issued a patent…the presumption of patent enforcement and protectability, is, routinely misunderstood, based on my varied experiences in this arena for 20+ years.  Any patent holder who may assume there is some impenetrable and ethereal bubble surrounding their patent specifically designed to safeguard its utility, i.e., functional aspects and features for the ensuing 20 years, will likely experience a most unfortunate surprise well in advance of that 20 year time-date stamp.

My counsel to those still in the innovation and entrepreneurial stage, preferably in advance of filing a patent application…is to encourage them to interpret the word ‘protection’ far less literally.  Instead, they will find it realistically beneficial to interpret the words ‘protection’ and ‘enforceability’ in the context of ‘wishful (cross-your-fingers) deterrence’.

In government (USPTO) speak…patent protection, translates much more practically, i.e., it means a patent holder has ‘judicial standing’ to engage in civil – criminal actions against anyone suspected of engaging in  infringement and/or misappropriation of their patent rights as conveyed in Article I, Section 8 of the U.S. Constitution.

But,  through my experiential lens in these matters…it’s practical application translates as each patent holder assumes a (fiduciary) responsibility to have effective ‘best practice’ safeguards in place (prior to, during the application process, and upon, and following the issuance of their patent, for the duration of it’s legal enforceability.

The primary objectives for these safeguards are to…effectively mitigate the ‘novel and non-obvious’ components’ vulnerability, probability, and criticality to experiencing economic, competitive advantage, and/or market loss. To be on track to achieve this, each patent holder also has a fiduciary obligation to…

  • be alert to, monitor, and rapidly and effectively respond to any-all indications (evidence, risk) their patent, whole, or in part, is being infringed, has been misappropriated – stolen, or otherwise, its projected (real) value, revenue generation, and competitiveness have been criminally undermined.

Equally important, any explanation – discussion of patents…i.e., their content, and hoped for (projected) economic, competitive advantage, and/or humanitarian – altruistic outcomes, would be remiss, if the holder overlooked – neglected to recognize the integral and contributory role and value of the embedded intangible assets, i.e., intellectual, structural, and relationship capital which routinely underlie each stage of patent development, formulation, and execution.

This is especially relevant for purposes of…understanding – distinguishing what, when, how, and the circumstances their proprietary intellectual, structural, and relationship capital, pertaining to the patent, should best be monitored for materializing risks and ultimately 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 [email protected] Business Intangible Asset Blog since May 2006 ‘where attention span, business realities, and solutions converge’

Readers are invited to explore other blog posts, papers, and books I have published at

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