Getting Hired in the IP Field [PTO Stats]

There is nothing better then data...said no one...ever. However, I think lawyers should have a keen eye to trends, and trends only make sense with data.  The patent office is a great resource to uncover strategies and long term trends in the field (and in American innovation in general). Below are some patent stats for 2012.

It is interesting that slightly more than half of all the applications filed in the US, originated from inventors in foreign countries. The take away is that foreign filing in the US is a serious source of work and revenue for firms, large and small (there is a reason I go to Japan once a year). However, one could argue that Americans have lost the edge in their own patent office. When you break out the foreign countries into their own catagory, the situations becomes more interesting.

Japan, once the second largest economy in the world, is still the second largest filer of Applications in the US. In contrast, China (PRC), is the world's second largest economy, but is tied with Canada for the amount of applications filed in the U.S. Over time, these number will begin to reflect the rise of China on the global stage, but the concern that China is already at the front, is a bit misplaced.


Lastly, the estimated number of active patent practitioners is 26,000. So, when you calculate the total number of applications filed by the number of active practitioners, you get 20.8 Applications per practitioner. Seeing that some of these applications are pro se, some companies have hundreds of applications filed by a small team, the number of applications per attorney or agent is actually quite small. I will let you draw your own conclusions on what that means for the prospects for new lawyers.

[Ngram Viewer] Patent troll vs software patent vs open source

This is a brief follow up to the earlier post on not fearing/feeding patent trolls. I wanted to see the mention frequency for patent trolls measured against open source software and software patents. The chart is below and self explanatory. Social media tends to drive our opinions as the the current state of IP. However, the empirical evidence tells a differs story.

Clearly, the story of innovation is being driven by open-source technologies. While software patents exists, the percentage of mind share they occupy pales in comparison to open source.

Don't Fear the Patent Trolls

One of the concerns revised by start-ups is fear that their small company will be sued by a Patent Troll (Non-practicing entity). Generally this concern is premised that the software (it is almost always a software start-up which fears patent trolls ) used by the start-up is covered by some obscure software patent.

Much like the Satanic Moral Panic scares of the '80s and 90's, the fear of patent trolls outstrips the actual reality.

Generally, the goal of a NPE is to obtain a lump sum payment for past infringement. Suing a start-up which has not demonstrated any revenue, or even a viable business plan to generate revenue, wouldn't gain any meaningful recovery. In order to recover for patent infringement, you have to show lost profits, reasonable royalty or willfulness. Since NPE's (by definition) do not practice the patent, they have a hard time showing lost profits. Thus, they rely heavily on a reasonable royalty of the Companies' profits.

If your start-up has barely received a series A funding round, the profit motive for litigation is not there. That doesn't mean that a NPE won't send you a letter alleging infringement, thus trying to rattle the tree a bit in the hopes that you have deep pockets. However, if you are a start-up without a lot of revenue, or a famous or wealthy founder, odds are you are not going to find yourself in Court.

However, if you do receive a nasty gram from a lawyer claiming patent infringement, ask the sender to identify the patent and the particular claims alleged as infringed. Wait to hear back from them. If they get back to you in a manner that does not answer those two questions, then it is time to contact a professional IP attorney.

The point is that NPEs suing start-ups are not a wide spread issue. A quick google search shows about half a dozen high profile instances, but that is contrasted against the list of start-ups supported by every major venture firm out there.

Not every start-up is being sued into oblivion on the basis of specious patents. For instance, the Government Accountability Office found that Patent Troll Litigation only counted for 20% of patent litigation cases in the US. The rest were simply run of the mill patent disputes. Of that 20%, most NPEs directed their fire to major multi-national corporations, not 3 man start-ups.

Code, innovate, and create. Don't spend your time thinking that their are monsters under the bed.

Jordan Garner

Standard essential patents are...essential

Forbes has an interesting article on standard essential patents (SEPs). You can read it here. http://www.forbes.com/sites/hbsworkingknowledge/2014/01/16/a-way-to-mitigate-smartphone-patent-litigation/

The article often points to Qualcomm's 6 billion dollar /year in licensing royalties (for CDMA patents) as though it were an example is an in the breakdown of the SEP system. 

However, the article fails to note that CDMA is not an obscure technology foisted on an industry. CDMA is the one of the most widely used cell phone communication standards on the planet. 

The whole purpose of the SEP system is to provide a reasonable royalty to the inventor of technology that the market determines is the best way to implement a solution to an industry-wide issue. 

If the industry is unable to perform this function, as the article implies ( noting the increased politicization of the process ), then why entrust the process to industry?  Forbes appears to be making an argument that the market, as it relates to SEPs, has failed.

If un-elected industry officials can not pick technological winners and losers, why not ask the un-elected bureaucrats to do so? In that scenario, some collection of professors, lawyers and government appointees could hash out some solution which results in a standard, non-negotiable license applied across the board.

If that outcome feels less than appealing, then the basic premise that the system is failing needs to be reevaluated.

If your technology undergrids global communications, you should be compensated for it, regardless of if you build every piece of equipment or not. The fact that different factions would argue for their technology is not a break down in the system, it is the system functioning as it was intended.

Jordan Garner
(c) 2014 Moorsgate Media

[Scam Alert] UPTS.org

Unlike intros to songs featuring Jay-Z, this is not a "new watch" alert but a a [New Scam] alert. However, much like the rap impresario, I come to tell you tales of The Hustle.

Much in the same way that modern hip-hop reinterprets the classic Greek tragedy, IP scammers seek the remix of old strategies.
Before the Internet, IP scammers must have had it made.  All that was needed was an official looking document and an Eastern European P.O. Box. Presto, cash in bank.

Now, in order to have a credible shot at committing fraud, IP scammers have resulted to professional looking webpages, and even more official looking documents.

I find UPTS.org to be particularly innovative in this respect. They use a web URL that is surprisingly homologous to the USPTO. That off-set  P grabs you, roping in those who are vaguely aware of the existence of the USPTO, PCT and EPO. Add in the .Org and it all looks so plausibly above board.

However, the briefest reviews shows that once again, those eastern European O.P. boxes are behind the scenes. Looking to collect your checks (and god forbid,) your credit card number.

Safe to say that UPTS.org is a scam. Do not give them your money. Add them to the List.

IP-Data.biz
UPTS.org

Jordan Garner

Steampunk, Patents & IBM

Steampunk as a genera was set to explode in 2013.  For those who don't know the difference between steampunk, cyberpunk and retro-future, let me provide this definition. A common definition could be provided as a sci-fi / fantasy sub-genre based around Gothic machinery and the industrialized civilization of the 19th Century. However, it should be noted that the definition of Steampunk differs from adherent to adherent. The common elements are a heavy influence by the works of Jules Verne, the inventions of Nikola Tesla and Victorian fashion. The genera adheres a retro-futuristic style that puts critical emphasis on ascetics, at times to the detriment of function.

According to IBM (a retro-futuristic enterprise if there were one) Steampunk was set to evolve into a cultural meme, jumping cultural domains like some sort of mechanical fish. IBM came to that conclusion through the use of its sentiment analysis system which scans social media for "chatter". In this case, the chatter said that Steampunk is set to explode. This "steam explosion" will see the transition from "high-cost" low volume Steampunk inspired devices to mass market production. See there analysis here. 

Naturally giddy at the prospect of this explosion in felt hats and brass goggles, I fired up my ISPDR Terminal (More on this another time) and went looking for Steampunk patents. 

Unfortunately, the only issued patent that felt "Steampunk-y" is the above illustrated "gear-heart" pendant. U.S.P. 666116.  Some additional patent applications were directed to video games having a Steampunk feel, but no additional physical device. No giant steam powered spider-automaton diagrams, no difference engines powered by AEther. Just some odd electrode wielding walking sticks and some flogs. 

Of course, it is possible that all of the really fancy jewelry is being copyrighted and not design patented.  However, if you thought your designs were going to go mass market, and you were working in a genera as unique and ascetically diverse as Steampunk, why wouldn't you seek design patent protection.  

The general take away should be about focusing your development efforts to conform to some 10,000 foot analysis, as opposed to developing and IP portfolio which serves current business needs. Clearly, those high-cost low volume manufacturers are not having a problem with rampant infringement. Otherwise they would have masses of patents and pending applications. 

Chatter about trends, technologies, or concepts are just that, chatter. Even with powerful computer analysis it is difficult to determine the direction of technology and style. Therefore, you never know what ideas and technology might take off tomorrow. This makes it difficult to justify the costs associated with IP protection. However, the opposite is true too. One well placed patent might control the market, or a genera. A balanced IP portfolio strategy, based on real world feedback, is always the right style. 

Jordan Garner