For most inventors a patent search should be the first step in the patent application process. The reason is simple. A patent search is used to determine whether the time and expense of moving forward with a patent application is a worthwhile endeavor. The patent process can be expensive, so the last thing you want to do is spend a lot of time and money preparing and filing an application when there is easy to find prior art that will likely prevent a patent from issuing. Likewise, a patent search can give you a good idea about the likely scope of any patent claim that you may be able to anticipate. If it looks like you will only get an extremely narrow claim it might not be in your best interest to invest in the patent application. You can then move on to your next invention, and inventors always have a next invention.
Between the legacy issue of bad patents, patent auctions and the many who purchase patents, what has started to happen is that the patent system rewards those who have the finances and ability to game the system. But the problem is extraordinarily complex. What is clear, however, is that the enforcement of bad patents is a problem within the patent and innovation industry.
But at the same time it would really be GREAT if the media and anti-patent community would get a clue and understand that the problem with bad patents is largely a legacy issue. Those that say that the United States Patent and Trademark Office continues to hand out dubious patents like candy are flat wrong. The bad patents that we witness being used in unsavory shake-downs have not been granted over the last few years, but rather were granted many years ago, under a different patent regime and when there was little findable prior art for patent examiners to use.
Those that pretend that bad patents issue today by the dozen and for a dime are living in a fantasy world that does not approximate reality. Yet the misinformation continues, undaunted by reality. So if reality doesn’t support the mountains of misinformation about the patent system and how it operates today, what is going on?
Whether you are an independent inventor, an fledgling entrepreneur or a seasoned inventor who is going out on your own for the first time, the best thing you can do for yourself is to become familiar with the concepts and procedure associated with protecting your inventions. Obtaining patents is not easy for the uninitiated, and without some familiarity you will be wandering aimlessly and wholly incapable of making sound business decisions. Simply stated: Inventors who are completely unfamiliar with the patent process also won’t be able to help in any meaningful way with the patent process. This is far more tragic than you might suspect.
Sure, if you can afford to you should hire a patent attorney to assist you. The patent attorney is there to, among other things, drag information about your invention out of you and translate it into the archaic legalese used in patent applications. The job of the patent attorney is to present your invention in a way that is most likely to accentuate the positive — namely the core uniqueness of your invention that will most probably lend itself to being determined to be patentably distinct compared with other inventions.
Even when hiring a patent attorney inventors still need to be engaged in order to give the patent attorney the best information available about the invention. This seems simple enough, but so many inventors fail to understand what information is important and why it is necessary. If you don’t understand the “why” you will you will almost never be able to provide all the information necessary.
While I don’t mean to imply that inventors are children, a perfect example of what I’m talking about comes from when parents attempt to teach their children not to touch the stove. Why? Because it is hot, of course. But does the child really understand that? No, not until they touch it anyway and connect “hot” with the pain they experienced. Experiential learning is formative for children, and in my experience the most powerful, formative type of learning — even for adults!
Article One Partners (AOP), a leading crowdsourcing patent research firm, just published a unique call to action on its blog. In an article titled Improve Commercial Agriculture with Seed Sampling, which published on Tuesday, November 20, 2012, AOP says they are looking for “farmers, botanists, and other agricultural professionals” to submit prior art for a research study that will remain open through December 11, 2012. The study in question relates to an automated seed sampler and method of sampling seeds.
While AOP researchers will submit patents and published patent applications for some of the studies, what makes AOP unique is that with over 25,o00 active researchers around the world they have a knack for finding those hard to locate references — so called non-patent literature, or NPL for short. Typically this non-patent literature comes in the form of journal articles or a Ph.D. thesis, for example.
With so many researchers, and more than 50% having advanced degrees, you can start to understand that frequently researchers will have knowledge of an important reference at the ready with little or no searching actually required. So a significant part of the AOP model is to push studies to highly educated individuals who may well have peculiar knowledge related to the technology being searched. That plus a little old fashion research multiplied by 25,000 leads to great results.
Looking for prior art can be a little like looking for a needle in the proverbial haystack. You set out looking for the closest references, which typically comprise patents and various printed publications. But where are you going to look? There are plenty of databases one can access, but each database comes with inherent limitations. You can only find what is within that particular database. While you can string databases together to do a more comprehensive search, no patent search is ever going to be able to search for each and every reference known to exist.
When you are doing a patent search to determine whether it makes sense to spend the time, money and energy to move forward with a patent application you expend an amount of money that is a fraction of the amount you will likely spend on the overall pursuit of the patent. For example, when we do patent searches for software related inventions we charge $2,500, which is roughly 10% of the overall cost of obtaining a software patent from start to finish. Can you find everything for $2,500? No, but you can get a very good sense of what else is out there and whether there is any realistic likelihood that a patent could be obtained.
In any event, and for all to see my diminished powers of prediction, AOP, the world’s largest patent research community, has passed another significant milestone. This time the company has passed the $3 million threshold in financial rewards paid to its global research community. Actually, the milestone was reached at the end of August 2012, but AOP only officially made the announcement last week. In fact, as of the writing of this article the reward calculator found prominently on the AOP homepage shows that some $3,371,500 in reward money has been paid to its community of crowdsourcing researchers.
The announcement that Article One has reached the $3 million milestone comes only six months after reaching the $2 million milestone, which took place at the beginning of February 2012. It took AOP 11 months to the day to reach the $2 million milestone, and since they opened for business in November 2008 it took approximately 27 months to pay out its first million in reward money. What this shows is that AOP is gaining steam, constantly shaving months off the time it takes to reach the next milestone award figure.
One of the newer prior art research studies currently underway at Article One Partners is one that relates to U.S. Patent No. 6,332,158, which relates to a system that assists user’s in selecting desired domains. See Intelligent Domain Name Lookup #1802. This study is of particular interest because the patent in question is owned by a subsidiary of Acacia Research Corporation, which is one of the largest and most powerful of the patent assertion entities (PAE) in the industry today.
Indeed, Acacia reportedly maintains upwards of 100 patent portfolios and aggressively pursues licenses for its own technologies. It is also a publicly traded company, so the industry has far more information about Acacia that with respect to virtually any other PAE. For some of my writings on Acacia please see Mother of All Patent Trolls and Acacia Research by the Numbers: Inside the Belly of the Beast. From what I know about Acacia it seems to me that they have found a very lucrative niche and execute quite well. They seem to acquire solid patents and patent portfolios and they are quite adept at monetization.
Of course, in this industry one man’s well operated company is another man’s patent troll. While it is entirely possible that they have acquired a patent that could be invalidated in litigation or in other forums, it seems unlikely to me that they would purchase a patent or patent portfolio without engaging in reasonable due diligence. That doesn’t mean, however, that the search for prior art will be futile. It just means that Article One is going to need the assistance of everyone who is at all knowledgeable about the industry and technology field. So if you know of prior art or have some time to hunt I suspect your input in this search could be quite valuable.
I have not previously noticed AOP doing Studies relative to foreign patents, but the hunt for prior art knows no boundaries and it seems only logical that some outside the United States would want to tap into the AOP network of researchers for prior art relative to non-U.S. patents.
In the case of EP808484, the technology relates to online gaming and virtual worlds. The purpose of the invention is to provide a system for modeling a virtual body within a virtual environment, and controlling the movements of the virtual body in response to user body movement while providing acceptable level of realism.
There really is no one-size-fits-all approach to inventing that can be claimed to be a road-map to success that will work in all cases. Notwithstanding, there are certainly a number of things that can and should be done early in the inventing process if an inventor is going to pursue inventing as more than a hobby. I continually preach to inventors the need to follow what I call a “business responsible” approach, which is really just my way of counseling inventors to remember that the goal is to not only invent but to hopefully make some money. Truthfully, the goal is to make more money than what has been invested, which is how the United States Congress defined “success” in the American Inventors Protection Act of 1999. The odds of being successful with one of your inventions increase dramatically if you engage in some simple steps to ensure you are not investing time and money on an invention that has little promise.
Recently as I have been perusing the ongoing research Studies being conducted by Article One Partners (AOP) I have noticed more of what I would classify as “non-traditional projects.” In some AOP Studies you will see that they are looking only for non-patent literature, or simply NPL as it is commonly referred to in the industry. In others the Study is open to both NPL, patents and patent applications. But increasingly I am noticing Studies that are seeking only issued U.S. patents.
Typically, an Article One Study seeks to identify the best available prior art for a specific technology. Many times one or more patent numbers are provided in the Study description, so it is easy to surmise that either the patentee is considering litigation and wants to know what could be found, there is some ongoing due diligence associated with a potential acquisition, or a defendant or possible defendant is searching for prior art to use in litigation or perhaps during a reexamination proceeding.
All of these patents asserted by STEC IP in these lawsuits were acquired by the company from the original assignee, Symantec Corporation. Each of these patents is also the subject of an ongoing patent research study being conducted by Article One Partners.
Mistakes will inevitably happen during the patent process. If the mistakes could be minimized, however, that would take a giant arrow out of the quiver of those who seek to use misdirection and half-truths to bring down the patent system. It is unrealistic to expect a patent system that is error free, but there are some mistakes that are quite difficult to rationalize as the type of error that is inevitable.
In a patent system where there are approximately 500,000 patent applications a year with somewhere between 200,000 to 250,000 issued patents a year, it is foolish to think that everything will run with 100% efficiency and accuracy all the time. But how is it possible that claims that are horribly written and terribly disjointed can be allowed after examination by a professional patent examiner?
Article One Partners has just reached the $3 million milestone, having given out over $3 million to its cadre of researchers. Currently the total sum awarded by Article One is at $3,049,000 and counting, with some $64,000 being awarded to the winners of closed Studies on August 24, 2012. For a list of Study winners dating back to November 2010 see AOP Winners.
Many corporations do exactly the wrong thing during a recession, namely downsize, spend less on research and development and essentially shoot themselves in the foot. But myopic corporations are not the only ones who engage in activities that are contrary to their own interest. Independent inventors and small businesses are struggling and for every encouraging economic sign there are many others that show a stalled recovery; a recovery that was already going to slow to start with. There is nothing wrong with being cost conscious, but there is a difference between being cost conscious and being cheap.
As is the case with all recessions or economic downturns, more and more people are turning to inventing. Just over the last several months, since at least late winter 2012, I’ve seen an uptick in the number of inquiries from inventors of various levels of experience who are interested in doing their own thing, starting a company or expanding the small business they already have to incorporate some new invention. This is not at all surprising, and is in fact exactly what you would expect. For many of these individuals and businesses, however, cost is the primary driving concern. They want to succeed, but they need to keep costs down. That is understandable and commendable, but when cost consciousness grows to the point where it interferes with proper execution of the plan then one has to at least ask whether it makes sense to pursue the plan.
Article One Partnersalways has interesting patent studies going on at any particular time, but one of their studies recently caught my eye in particular. There is an ongoing patent study relating U.S. Patent No. 7,076,445, titled “System and methods for obtaining advantages and transacting the same in a computer gaming environment.” See AOP Study DEV 1545. A system for obtaining an advantage in a computer game? Sounds like just the type of competitive advantage that I ought to know about so I can beat my son. Now don’t get me wrong. I can kick his butt on Madden 2012 (or any other version of Madden), but Call of Duty: Modern Warfare is a completely different story! I guess I should just be thankful that he plays Call of Duty non-stop during the summer and isn’t practicing up on Madden!
The Summary of the Invention in the ’445 patent starts out by explaining:
The present invention is directed to providing systems and methods used to create, integrate, and transact various advantages in non-computing, partial computing, and interactive computing environments. These advantages comprise desired environment features or elements within a participating user’s environment that are integrated within the environment. By integrating advantages, the present invention operates to facilitate the leveraging of advantages to participating users and offers advantage providers ensured exposure of their advantages.
What? That seems rather circular and not all elucidating.
How to Write a Patent Application is a must own for patent attorneys, patent agents and law students alike. A crucial hands-on resource that walks you through every aspect of preparing and filing a patent application, from working with an inventor to patent searches, preparing the patent application, drafting claims and more. The treatise is continuously updated to address relevant Federal Circuit and Supreme Court decision impacting patent drafting.
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For most inventors a patent search should be the first step in the patent application process. The reason is simple. A patent search is used to determine whether the time and expense of moving forward with a patent application is a worthwhile endeavor. The patent process can be expensive, so the last thing you want to do is spend a lot of time and money preparing and filing an application when there is easy to find prior art that will likely prevent a patent from issuing. Likewise, a patent search can give you a good idea about the likely scope of any patent claim that you may be able to anticipate. If it looks like you will only get an extremely narrow claim it might not be in your best interest to invest in the patent application. You can then move on to your next invention, and inventors always have a next invention.
Between the legacy issue of bad patents, patent auctions and the many who purchase patents, what has started to happen is that the patent system rewards those who have the finances and ability to game the system. But the problem is extraordinarily complex. What is clear, however, is that the enforcement of bad patents is a problem within the patent and innovation industry.
Whether you are an independent inventor, an fledgling entrepreneur or a seasoned inventor who is going out on your own for the first time, the best thing you can do for yourself is to become familiar with the concepts and procedure associated with protecting your inventions. Obtaining patents is not easy for the uninitiated, and without some familiarity you will be wandering aimlessly and wholly incapable of making sound business decisions. Simply stated: Inventors who are completely unfamiliar with the patent process also won’t be able to help in any meaningful way with the patent process. This is far more tragic than you might suspect.
Article One Partners (AOP), a leading crowdsourcing patent research firm, just published a unique call to action on its blog. In an article titled 
Looking for prior art can be a little like looking for a needle in the proverbial haystack. You set out looking for the closest references, which typically comprise patents and various printed publications. But where are you going to look? There are plenty of databases one can access, but each database comes with inherent limitations. You can only find what is within that particular database. While you can string databases together to do a more comprehensive search, no patent search is ever going to be able to search for each and every reference known to exist.
With every new milestone reached by 
One of the newer prior art research studies currently underway at Article One Partners is one that relates to 
As I was perusing the 
There really is no one-size-fits-all approach to inventing that can be claimed to be a road-map to success that will work in all cases. Notwithstanding, there are certainly a number of things that can and should be done early in the inventing process if an inventor is going to pursue inventing as more than a hobby. I continually preach to inventors the need to follow what I call a “business responsible” approach, which is really just my way of counseling inventors to remember that the goal is to not only invent but to hopefully make some money. Truthfully, the goal is to make more money than what has been invested, which is how the United States Congress defined “success” in the American Inventors Protection Act of 1999. The odds of being successful with one of your inventions increase dramatically if you engage in some simple steps to ensure you are not investing time and money on an invention that has little promise.
Recently as I have been perusing the 
On May 22, 2012, STEC IP, LLC, filed 
Article One Partners
Many corporations do exactly the wrong thing during a recession, namely downsize, spend less on research and development and essentially shoot themselves in the foot. But myopic corporations are not the only ones who engage in activities that are contrary to their own interest. Independent inventors and small businesses are struggling and for every encouraging economic sign there are many others that show a stalled recovery; a recovery that was already going to slow to start with. There is nothing wrong with being cost conscious, but there is a difference between being cost conscious and being cheap.
