Patented Innovations Create the Future

By John White
September 27, 2018

“Protected innovation sets the stage for more of the same. Unknown and unknowable to the originators of one variant, they are directly responsible for the emergence of more variants. More futures.”

https://depositphotos.com/41107615/stock-photo-innovation-concept.htmlThe age-old question for parents of a teenager: it’s 10 o’clock Saturday night, do you know what your teenager is up to?  That Question strikes fear in every parent, mostly because parents were teenagers once as well (hard to believe, but true!).

Well, the same question can be asked about patents. It’s 4 years since your patent issued, do you know what it is up to?

Patent attorneys have an answer for this question that varies from the mundane: did you mark your product? Have you sent out any demand letters? Filed any complaints? Done any licensing? Paid your maintenance fees? To the disheartening: patents all worthless in view of the PTAB and a Supreme Court (and CAFC) that clearly hates patents, at worst, or doesn’t understand them, at best. Some patent attorneys gratuitously add: I am glad I am nearing retirement. Wow!

For the C-level people at the companies who have financed and invested in all the things patents are intended to protect, this sort of feedback does not give them much to work with in terms of planning the way forward. C-levels talk amongst themselves, and their MBA friends, and express uncertainty about the value of IP and what should be an appropriate metric, vis-à-vis their business objectives and realities, for expected expenses and ROI for IP in the US and around the world.

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Let me provide another perspective and another answer. First off, be amazed at what the patent system has wrought. If you ever want a pick-me-up, flip through the first 50 pages of any recent Official Gazette from the PTO. Just look at what is issuing week-to-week. Astounding. The scope and creativity revealed in those pages is impressive. Simply put: These pages reveal the future; and, the owners of that future. Everything you rely on today, i.e., your phone, your monitor, your car, your pharma, your food prep and delivery, your mattress, your digital existence, etc., was conjured up and protected a decade back, when you were doing something else.  The folks doing the filing and protecting weren’t thinking about what the documents were doing, they’re too close to it for it to be revealed. This revelation, however, is easily understood once an observer is removed a little from the detail. You can see the shadow of the future before it emerges into view.

In addition, these patents spawn the alternative futures that can also come to exist. You see, people other than me read patents as well. I can relate anecdote after anecdote of client companies whose engineers have poured over the patents of others, and taken entirely different routes to a similar future. Also, patented. Which, in turn, led to more creativity, etc. They took the alternative route because they wanted to innovate, or were forced to in order to avoid an infringement complaint. You get the picture. Protected innovation sets the stage for more of the same. Unknown and unknowable to the originators of one variant, they are directly responsible for the emergence of more variants. More futures. The market will decide who chose the better path.

Who cares about the foregoing? All those C-level folks that you babble to about product marking, demand letters, and licensing revenue. They get that, patent people have been “dog-with-a-bone” about that stuff since law school; but that is the mundane. For now, what they see is the “hole” in the income statement, reflecting current IP spending. They read the popular press articles about “junk patents” and the S.Ct. cases too. And, they, and those they report to, are more consumed with participating in the “present”; being hatched from the IP eggs laid up about a decade back. The ROI on the present is straightforward: sales, cost of sales, cost of sold product plus delivery, present values, amortization, blah, blah, blah. Entire schools are dedicated to the “present” and near term.

But, what is the ROI on not being a part of creating the future, and not being present at that table? Easy: the “cost” of not innovating now and not protecting innovation now is the elimination of being a part of whatever it is that is beyond “now”. So, C-level folks, the ROI of not innovating, and not protecting that innovation with IP, means you won’t be a part of it; whatever “it” is. Maybe you do not want to be a part of it. If so, tell that to shareholders and other investors so that they, too, can get on board with your plans or sell your stock now before the present passes.

On the other hand, if you do want to be a part of what the future holds: Innovate, and protect, and be an owner when the future emerges into view. Don’t simply protect the winner, because you can’t know what it will be in the future. Protect broadly.  As a full participant in creating what will be, you can plan and predict, and look forward. For those who don’t, the future, at least one being any different from the “present” doesn’t really exist. I mean, I suppose you could still be using a “Walkman”, but I doubt it. Probably can’t find any cassettes to play on it anyway!

The Author

John White

John White is a Director at Soryn IP, a patent advisory and finance firm that, among a host of patent-centric offerings, assists parties in identifying and acquiring patent portfolios that satisfy strategic and business needs. Mr. White is also a US patent attorney and a principal lecturer/author of the PLI Patent Bar Review Course. Since John began teaching patent bar review courses in 1995, he has personally taught nearly 50% of all practicing patent attorneys and patent agents how to successfully become admitted to the Patent Bar. has also taught numerous US Patent Examiners at the United States Patent & Trademark Office (USPTO) in the “Law and Evidence Course” necessary for them to advance to Partial Negotiation authority as Examiners. John serves as an expert witness in litigations and is regarded as a leading authority on patent practice and procedure. For more information please see his profile page.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 7 Comments comments. Join the discussion.

  1. Anon September 27, 2018 11:02 am

    An entertaining read.

    (says a co-chorus member)

  2. Greg Waite September 28, 2018 9:20 am

    This nails it for me “what is the ROI on not being a part of creating the future, and not being present at that table? Easy: the “cost” of not innovating now and not protecting innovation now is the elimination of being a part of whatever it is that is beyond “now”. ”

    Very well framed up, C level folks, Board members and Shareholders need to understand this. Very well articulated.

  3. Chris Gallagher September 28, 2018 11:53 am

    Chris Gallagher

    Patent Icon John White wisely advises that for years shadows of the future have been revealed in USPTO publications. Interestingly, world renown futurist Amy Webb begins her probes into the future by reviewing in the same USPTO publications. The problem today is that until the US patent environment changes Ms. Webb may be forced to look to the patent filings in China and Germany etc.

  4. Ternary September 28, 2018 1:14 pm

    It is clear that certain groups don’t want other groups (such as independent inventors) to be part of, and set the direction of future technology.

    Bill Gates and the founders of Google have all understood very well that the major threat to their business does not come from established competitors, but most likely from an obscure start-up that applies a novel technology. Their best bet is to make the development of such a threat as difficult as possible. Preventing valuable patents to be issued and asserted against them is clearly a strategy that works.

    This does not mean that innovation does not take place. But it is tried to be limited to a Sport of Kings.

  5. angry dude October 1, 2018 11:37 am

    Actually, most of US patents owned by large tech corps and well funded SV upstarts (Apple, Google, Amazon, Facebook etc etc) are complete BS and need to be invalidated asap

    NOT ENABLED at best or shameless grab of future territory at worst

    I read Magic Leap’s patents and applications and LOTs of other patents

    NOT enabled. Period.

    therefore INVALID

    They want to protect what does not yet exist and all possible future ramifications of it

    Time to go back to physical prototypes stored at USPTO

    Or to actual *working* software code in case of “software” inventions

    And applicants have to explain very well which piece of it is new and unobvious and deserving patent protection

    This will cancel about 95 % of google and apple “patents”

    Problem solved

  6. Benny October 2, 2018 2:54 am

    We can’t put a figure on the ROI of our patents. We view our patents as a garden fence. We are not interested in charging visitors to enter the garden, or in prosecuting trespassers. We want to keep everyone else out. We will never know how many people would have trespassed if we didn’t have a fence, nor how many people contemplated knocking down our fence but decided to cultivate their own garden instead. Perhaps a better garden. That doesn’t make headlines. But we know it works because other peoples’ fences keep us out of their gardens, and where there isn’t a fence, we walk freely. But the ROI isn’t quantifiable.

  7. Anon October 2, 2018 10:12 am

    Benny,

    A post of yours for which I find myself not disagreeing with you.

    Quite in fact, the type of value you indicate is one of those “intangibles” that speaks to the propriety of injunctions for making a transgressed as whole as possible in the patent context (quite different from the “usual” view of injunctions in the “equity world” as a “most harmful” type of remedy).

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