A Look Back on 50 Patents, and Initiating an Innovation Pipeline
Earning 50 patents in just two years is an incredible accomplishment. My first US patent was granted on June 19, 2018, and my 50th happened June 23, 2020. This is after beginning to file patents only in mid to late 2017. How does one go about getting patents so quickly, especially in the highly crowded tech sector, and how can an organization facilitate such excitement among their staff to check for their names at 12:01 AM any given Tuesday?
This Process is Nuanced, and Expensive!
There is a lot of basic information about patents that you can read about or watch talks on from many other websites. This includes information such as patents don't have to be complicated or some over-engineered gadget (lawyers make them seem like that, though!); what makes a good patent and what doesn't; why it's important to be first to file versus first to invent; how patents thread the eye of a needle to be written with enough specificity to be plausible, and implementable by someone proficient in the state of the art while still being broad enough to prevent a simple tweak on the patent being filed by a competitor; and especially, not to mention, the cost.
There is significant cost in time and money involved in filing a patent. As such, you really don't want to waste those resources pursuing a patent on an idea that will be rejected for not fitting the mold of what's patentable. There is even more cost involved for getting a patent fast-tracked through the USPTO application process. Many startups are cash-strapped, and settle for filing a provisional patent while waiting on more funds to come in, or legal counsel to finish writing patent documentation. However, large corporations already have an army of lawyers on-staff who can consult with engineers and inventors, and deep enough pockets to refer vetted documents out to big legal firms that can crank out patent drafts with ease and skill, even milking variations on ideas into "continuation" patents.
The Money - Valuing the Opportunity Cost
The grantee of the patent (in my case, the company I work for) is responsible for allocating time for me that might be distracting from doing something that could provide immediate business value. If this was me for myself, this type of opportunity cost might mean I can't put bread on the table in a given month. But for a company, this requires excellent foresight on valuating patents as tools in the broad realm of an intellectual property portfolio. It also doesn't hurt to keep the bean-counters as distant and in the dark as possible on these types of skunkworks operations, especially those too immature or inexperienced to understand proper metrics for gauging IP investment. A company needs to learn to justify the value inherent in a patent portfolio from various standpoints:
- It can make a company an attractive target for acquisitions. Think of all the times a company bought another company just for its IP, such as HP's acquisition of Palm in 2010.
- It can be a talent magnet. Innovators seek a culture of innovation, and so having patents begets creative people. (More on people later! They're very important to this.)
- And let's not forget the obvious: protecting your company's business and processes from being blatantly ripped off. You invested a ton into your product R&D; don't let someone else reap the reward from that investment.
These three points, plus possibly more, all need to be valued by anyone looking to pursue patents. Is your organization ready to take this on? How important is it to you relative to other things you could be doing with the money or the resources? Obviously, you could be spending that money on new tools or staff to finish business priorities, but it is unwise to sacrifice the long-term ability for your organization to innovate or even maintain the status quo by simply focusing everyone's attention on incremental short-term goals.
As for me, the inventor, it's not my job to do anything besides work with the lawyer to make sure the draft is clear enough to pass muster with the USPTO. Again, it's up to the company to front the money spent on lawyers to draft, prosecute, and defend intellectual property into a patent. Whether or not the patent gets thrown out later, or the company spends millions of dollars arguing it in court (a la Google LLC v. Oracle America, Inc.), I'm not made aware of any of this. I'm also not responsible for shaking down those who infringe on my patent for royalties, which would take a significant amount of research and legal cost -- again, an opportunity cost to consider.
Now, there are ways to do this cheaply, and there are ways to pull out all the stops and spare no expense on patents. The latter camp involves multiple facets:
- Providing tools to make it as easy as possible for employees to submit intellectual property for review by legal counsel for potential patentability, and track its progress
- Cultivating organizational awareness, such as encouraging anyone to file patents by having informational booths on patents in general plus internal processes (that you set up in the first bullet point) in the company canteen
- Empowering lawyers to spend extra money with the USPTO to fast-track applications, plus extra money with legal counsel to develop iterations and riffs on ideas into continuation patents so that multiple avenues or approaches to the method / process are covered
A company will want to take the latter path if they're looking to bootstrap a large IP portfolio quickly, and of course all the inventors get to ride on the coattails of all these filings.
First thing: it is unfair for executives to get all the credit for the patents. Anyone responsible for contributing to the idea (the process or the method) needs to get credit. This doesn't necessarily mean implementation, though; certainly one can follow instructions to build something without necessarily dictating much about how the process or method is laid out. Plus, full-on implementation is not required for patents, particularly in software. Often a proof of concept is sufficient. But still, it is annoying when directors take all the credit in the public filing, and not a single engineer, product person, nor architect gets any mention.
With that out of the way, the people involved with a creative organization need to be geared in a certain way in order to do well at making patents. With the right people in place, there is also a particular corporate culture where innovation will flourish, and other cultures that will discourage and even punish it.
First and foremost, anyone tasked with cranking out patents needs to be good at holding his or her ground, understanding the application of the idea so well as to describe how it differentiates itself from prior art. This was often the battle I fought with lawyers the most, even moreso than having to describe how the technology behind the idea is differentiated from prior art. Among an innovation team, there needs to be at least one person on every patent who is the type to start a debate just for the sport of it, as they will come prepared to stand up for the idea, and not back down in the face of discouraging evidence.
Being Eloquent and Thoughtful On One's Feet
Beyond arguing with lawyers about the merits of the idea in the face of the nearly 11 million other patents that have been granted in the USA over the course of history, it is extremely important for individuals to be able to convey ideas effectively to their colleagues during innovation sessions so their voice can be heard and their contributions make a meaningful impact to the final shape of the idea. Ideas need to flow, and people need to be able to pivot not just on whatever technology is solving the problem, but also the problem itself and its significance.
It's certainly a personality trait to speak clearly and command attention, but even if someone does not command such gravitas, they can still be a strong team player by listening closely to business leaders about what are the current problems and goals, and marrying that with trends in the industry or other industries that might disrupt those goals, whether these trends revolutionize existing processes or else distract people from participating in the process altogether (for instance, as debit cards, Apple/Google Pay, etc. have grown in popularity, dollar bill counters are becoming less necessary in businesses). The innovation team needs to take all their own members' viewpoints into perspective, especially if some folks tend to stay quiet during the discussion while others speak their mind -- seemingly without needing to take a breath. Beware that polite conversation may get steamrolled, and folks will have to be unabashed by jumping in over each other and interrupting.
For me, it was extremely important to make sure the patent was as true to the invention as possible. I would often go back & forth with counsel, submitting lengthy amendments and corrections to patent drafts, because it is my belief that an accurate patent will be more likely to survive the scrutiny of the USPTO, and less likely to be thrown out in a court if someone challenges it. That said, it's possible that the original patent may have had an easier time of getting through, but usually it was a matter of correcting errors that would have made the process described seem ridiculous to implement, or even simply correcting typos that could annoy the patent examiner and induce undue scrutiny and/or ire.
Certainly some law firms and lawyers write cleaner drafts than others, so it is worth shopping around if you have the budget, bandwidth, and volume of patents you're looking to file. Firms or lawyers within firms specialize in various fields of engineering, science, and technology, so make sure to pick those that understand your field the best. Even still, though, there were times I was clearly dealing with lawyers who were inexperienced in, say, cloud computing; they were making tons of mistakes on the drafts and it finally required me to "adopt their language" and attempt to write the descriptions like they would (legalese). If this is happening to you a lot, you should start looking for another lawyer!
Seeing Beyond Existing Business Problems
It's one thing to patent existing processes that weren't patented before (but are eligible since they haven't been publicly disclosed). This is especially important to address, and you should probably spend your initial investment in IP doing this. However, when an innovation team comes together, possibly with guests, to brainstorm particular avenues of intellectual property, it's important for those involved to not just understand all the details of the business, but also what the business could be in 5 or 10 years. What are external forces that will change the way your business works?
One could attempt a means to facilitate such thought by coming up with a matrix combining business problems with technologies, but the business problems must be truly creative and compelling in order to come up with anything useful. It is most challenging to get people to come up with creative business problems or needs. Technologists can easily apply technology to just about anything once they find out about the problem at hand, but knowing a worthy problem is most of the battle. Now, continuations come into play when technologists come up with multiple solutions for the problem at hand. Nothing wrong with covering all the avenues; it just ensures you can retain that niche in the market for whatever good comes from the process or method you developed!
Being Diverse and Inclusive
This should go without saying, but a stronger IP portfolio will come from a team with broader world views and perspectives. Include multiple races, genders, ages, physical abilities, neurodiversity (mental conditions like ADD or Asperger's, or even different thought processes or Myers-Briggs personality types), and so forth on the innovation team, while still balancing all the important personality traits described above.
Culture Must Be Exactly Right, or It's All Doomed!
There are some key pitfalls that an organization must avoid in order to keep an innovation team thriving. Here are a couple big ones that will sink the ship:
Bad Metrics: Comparing Apples to Apples with Other Teams
Some statistics don't even make sense to compare among teams, let alone use as any sort of bar whatsoever. Take sprint velocity, for instance, as different groups of people will score the complexity of their work differently. Or lines of code written; are you really more productive, or are you just putting ASCII art in comments? Then why would you ever compare how much the innovation team pushes to a production environment with how much other teams push to production? And, frankly, do the other teams even push to production with good quality? Take a hard look at your defect rate and technical debt before you knock the innovation team for not keeping pace.
Not Invented Here Syndrome
For big companies, nothing hurts morale among developers quite like a special group that gets to have all the fun while everyone else is doing something mundane. This goes along with the notion of "tossing it over the wall", where one team starts something and it's another team's responsibility to scale it up, make all the adjustments to get UI/UX folks happy, and then productionize it. The chance to do something innovative should be spread around; even if the innovation team is tasked with it 100% of the time, either break them up into the business once in a while, or have members of other teams sit with them for a while to join in the fun.
The other aspect of this comes from leadership as well. We know leaders like getting credit for things, and those worried about not being involved enough to get their name on something will not be forthcoming with useful information that could lead to a disruptive idea. People need to be trustworthy and collaborative rather than back-stabby and political. The problem being solved is really of utmost importance, so clear understanding from business (often leadership) of business goals and future challenges is even more important to making good ideas than the technology -- but, of course, the patent examiner is going to want to see a firm grasp of the technological aspect as well.
Epilogue & Final Thoughts
Organizations need to assess the value of intellectual property at the same time as assessing everything else such as marketing, R&D, and so on, and then pursue it at the desired level. Top-performing innovation teams need to be made up of the specified types of people fostered by the specified culture and provided with the specified resources in order to succeed. Their value must be appreciated by management, and they cannot be judged by the same metrics as other development teams since an innovation team won't have time to put things into production. It is critical that members of an innovation team have keen understanding of not just technology, but especially business problems now and into the future. Prognosticating the future and saying "if X exists, then we can do Y" is useful for really opening up people's eyes into additional patentable possibilities. Coming up with mashups of existing technologies can be cute, but the problem it solves and the advantage over other processes will make the difference between a patent and just a better algorithm. Devising a matrix marrying business problems with particular technologies can be fruitful, but it's only impactful when the business problems are meaningful and not simply mundane or ordinary. Hopefully you've already taken the time to patent your processes around mundane or ordinary things to the extent possible, before someone else claims ownership of your business.