Random notes on self-interest theory when creating services and products. Merging the ideas from Mike Acton to Clay Christensen.
Quick introduction to the adventures and challenges of transitioning from college to law school, way back in 1993.
A Darwin Talk video from EvolveLaw raising a question about what the future legal teams might look like.
Patdek makes the ambitious push to annotate the world of patents. There's probably not a better way to express why this is important beyond leaning on the words of Marc Andreessen:
I often wonder how the Internet would have turned out differently if users had been able to annotate everything – to add new layers of knowledge to all knowledge, on and on, ad infinitum.
Patdek attended TechCrunch Disrupt 2014 in New York City on May 6, 2014. It was a great event and we met a large number of inquisitive people. Many had heard about people having patent issues, but wanted a better understanding of what issues are involved. That's the question we're answering with Patdek.
Lithosphere Software will be attending the Developer Patent Summit in Washington, DC tomorrow being run by the Application Developers Alliance. In advance of this meeting, I'll be re-reading the GAO patent report from August 2013 and reviewing Colleen Chien's recently published Patent Assertion and Startup Innovation report about NPE activity.
There seems to be a convergence of thought around NPE activity - it's not that NPEs are necessarily the problem, but rather that "bad patents" are the problem. If this position is correct,
The actual number is under $7 billion. Where is the disconnect? Phillip Mann, of the Mann Law Group, blogged about a New York Times article on July 15, 2013. In that blog he arrived at his $20 billion fee estimate going to defense lawyers.
The NY Times article referenced by Mr. Mann is titled "Has Patent, Will Sue: An Alert to Corporate America." The article is about Erich Spangenberg of IPNav. IPNav is often referred to as a Non-Practicing Entity in patent litigation circles.
Lithosphere is not alone in talking about applying technology to improve legal processes. From the blog below, there's even a class at Georgetown Law School called "Technology, Innovation and Law Practice." The blog observes that:
The technology is available now to improve some of the functions that lawyers typically perform.
from 3 Geeks and a Law Blog: The Next Generation of Computers Practicing Law. Niki Black of MyCase also explains that
I truly believe that over the next few years, lawyers who embrace and utilize technology effectively–in particular Internet-based and mobile tools–will undoubtedly have an edge over their less tech-savvy colleagues.
from MyCaseInc blog: Can you automate the practice of law?
Our belief is that by replacing a typical patent lawyer function (manually organizing/analyzing patent claims and prior art in a folder structure) with new technology-based tools (database environment providing an edge over standard patent claim chart analysis), a lawyer can have a better grasp on the analysis. A deeper understanding of the more subtle issues can then be achieved.
We focus on developing tools that enhance the understanding of the boundaries of patent protection. The tools can be applied to infringement and invalidity analysis, but the underlying principles are the same - what is the proper scope of the claims. If the claims are too broad based on the prior art, then a challenge can be made. Does the claim scope really reach an accused product or service? All of this is shaped by the prosecution history of the patent, prior art considered during prosecution, any stated reasons for allowance, and prior art not considered during prosecution. This is a lot of information to track, process and understand.
Give us a call and see how we can help you in your practice.
This sums up why we formed Lithosphere in the first place - to build out PatDek:
There are tons of reasons to start a new business.Want to know the best one? Here it is:
“Because I want to be its first customer”
via Andy Swan • The best reason to start a business (or Prototype, Pivot, Platform).
Since 2002 we looked for a solution to better understand technology innovations to map them to patents. We couldn't find anything close to suit our needs. We decided to "roll" our own solution to tackle these problems and became PatDek's first users. Now we're sharing it with you.
Taking a break from the typical contentions-driven posts, it was refreshing to see that Twitter is taking a stand about how it intends to use its patent portfolio. The press release provides:
The IPA is a new way to do patent assignment that keeps control in the hands of engineers and designers. It is a commitment from Twitter to our employees that patents can only be used for defensive purposes. We will not use the patents from employees’ inventions in offensive litigation without their permission. What’s more, this control flows with the patents, so if we sold them to others, they could only use them as the inventor intended.
I found this interesting because it shows how that the company is trying to view its patents from an inventor's perspective. If an inventor feels that his or her novel idea was plainly stolen, the inventor may be adamant about seeking redress. This may play well for a jury as well. Although the company has somewhat constrained how it could monetize its portfolio in the future, it has now aligned its interests with those of its inventors' desires for their patents.
claims understood as concepts
Here is a pictorial of the process that describes how to understand the idea of "concepts" as they relate to patent claims and prior art. The main idea, as shown in the graphic below, is that patent claims can be represented concepts. We utilize this process because patent claims often use the same or similar words to cover a particular feature.
As above, the color-highlighting generally indicates features recited in the claim language. The different colors represent different features recited in the claim. The user determines how a claim can be divided into different concepts. In the next graphic, we show a group of concepts. Once concepts are identified for one claim, the same concepts can be used for other claims.
As below, three claims can be represented by seven concepts. Because certain concepts are repeated (as indicated by arrows), they are reused in different claims.
concepts representing multiple patent claims
In a final graphic (below), the concepts are shown to link the patent claims and the prior art. By analyzing the prior art using concepts, the user does not need to repeatedly refer back to the claim language. The concepts, not claim language, are used to analyze the prior art (another post on claim concepts here). At this level of prior art review, different teachings of the references can be matched up together. These mashups of the references form patent claim charts and invalidity contentions. Using the PatDek interface, different prior art mixes can now be generated by the user.
linking multiple patent claims to prior art using concepts
We recently completed an update to our list of local patent rules. You can now find a list of each jurisdiction that provides patent local rules, a corresponding link to the patent rules or PDF, and excerpts of the specific rules concerning invalidity contentions and invalidity charts. Take a look and let us know what you think. We still need to add a couple of additional jurisdictions.
The patent "crowdsourcing" topic, although addressed before, appears to be gaining some momentum. We know that Peer-to-Patent offers access to its website to spur the patent crowdsourcing initiative. As suggested by Peer-to-Patent, Eric Schmidt, and others, crowdsourcing the patent review process may help the PTO avoid issuing broad patent claims. One problem still remains - how to apply crowdsourcing to the patent landscape whether at the PTO, for litigation, or in reexamination.
For example, Article One Partners is in the process of applying crowdsourcing to prior art search. Peer-to-Patent applies crowdsourcing to prior art selection, with small doses directed towards analysis. Prior art analysis, or tools to aid in analyzing the prior art specifically against claims, remain in the background of these efforts. For crowdsourcing the actual prior art analysis, there's not much out there.
Although Lithosphere Software offers a set of patent tools directed to prior art analysis linked to patent claims, these tools are primarily designed for patent litigation to create invalidity contentions and invalidity charts. Schmidt's suggestion below is a good one, but very labor intensive, and still is not directed at how to organize the analysis.
Schmidt suggested that the real problem with the current patent landscape in the U.S. has longstanding causes; in the early ’90s and early 2000s, he said, there were a lot of patents issued that “were very broad”, and that patent clerks are now spending a lot of time combing through and invalidating these older patents. The best way to address this problem, he said, is to take the patents as they’re published and crowdsource them. The best way to potentially curb these patent wars, then, would be to publish the patents publicly and allow “everyone to comment to see if there’s any prior art”, he said.
via Google Chairman Eric Schmidt Weighs In On Patent Issues: They’re ‘Terrible’ | TechCrunch.
We have considered how to extend our patent tools, possibly simplify them, to make them more appropriate to non-patent lawyers. The gap in crowdsourcing patent and prior art analysis right now is how to allow "everyone to comment to see if there's any prior art." Once prior art is identified, the next logical step is matching the prior art to the claim language.
Once you check out Lithosphere Software's platform, let us know how you think we could simplify our platform to improve it for use by the general public to achieve that elusive "how."
I came across a blog post that reviews a book authored by crowdsourcing blogger Jeff Howe. The blogger, Steve Keifer, summarizes what Howe's book describes as four variants of crowdsourcing:
In the final chapter of the book, Howe describes the four primary types of crowdsourcing – 1) Crowd Wisdom; 2) Crowd Creation; 3) Crowd Voting and 4) Crowd Funding, each of which I have outlined in more detail below.
via Four Types of Crowdsourcing « Outside In Marketing by Steve Keifer.
How can crowdsourcing be applied to patent litigation? The application of the type of crowdsourcing would likely be dependent on the usefulness of the method to a defendant or plaintiff.
The first two types are probably the most applicable to a defendant. For invalidity contentions - "crowd wisdom" fits well as it relates to prior art analysis and "crowd creation" makes sense as it relates to prior art searching.
For "crowd voting" and "crowd funding," each of these may work for both plaintiffs and defendants. As to defendants, non-related industries could target, via voting, particularly troublesome patents to pursue. In a reexamination context, crowd funding could enable non-related industries to pool resources for a large scale reexamination effort. On the plaintiff side, crowd funding could be used as a mechanism to fund large scale infringement pursuits.
In the next post I'll try to explain how we see our software platform positioned in the crowdsourcing space, particularly in the prior art analysis context.
PatDek can help identify the gaps and holes in your invalidity analysis. Consider this best practice suggestion from Patent Hawk, a well-regarded prior art searcher, and consider how PatDek can enhance your analysis.
Best practice is to holistically build an invalidity position: search, chart, then search more if necessary to fill any gaps.
via Patent Prospector: Building an Invalidity Position.
If gaps exist in the prior art, how can you learn where those gaps are? If a new search is undertaken, how do you integrate the new search results into your case? We can help you with these problems. Because the prior art set evolves during a case, you should consider a flexible management system to handle the defense aspects of your case. We welcome the opportunity to help you with your case. Just ask.
PatDek solves the never-ending, nagging problem we face as patent litigators - cutting/pasting/editing claim charts with changes, as our analysis of the prior art evolved over time. Maybe the change was adding or removing a passage from several charts, harmonizing citation formats, or altering the mapping of certain disclosures to specific claim limitations based on group feedback. For whatever reason, someone would identify a change that needed to be made for a prior art reference, and this change needed to be made across a number claim limitations and for a number of charts. Usually multiple edits were required and all of these edits needed to be made to all of the charts. These changes were time-consuming and interfered with our primary task - reviewing potentially relevant prior art references. For a given project, editing charts decreased the time that could be better allocated to applying the most relevant references against the target set of claims.
In our minds, effectiveness was impacted by the editing process. Now consider the next phase of litigation, after preliminary invalidity contentions. The charts may need to be changed against because of claim construction rulings or expert witness input, or maybe there is a new prior art reference for a combination. Yet another set of changes and more time devoted to a new theory further increases the time spent editing charts, not refining invalidity theories.
With PatDek, each change is made once and the change is applied to every applicable instance. Changing charts is no longer a time-consuming problem.
That was the thought process we followed. Why not make our jobs easier and just analyze references, then let a computer put charts together for us once the analysis is underway? This seemed straightforward, or so we thought back in 2001. Flash forward a decade and we're getting there, and we learned a lot along the way.
There are numerous blogs on this topic out there already. I would agree. How will this one be any different? Not sure yet. The best I can say is that I've been practicing patent law, and in particular patent litigation, for nearly 15 years. Certainly not a long time nor an extensive amount of experience for a lawyer, but enough time to understand some of the nuances of patent litigation practice, perspectives of clients and judges, and also enough experience to digest patent-related legal issues fairly quickly. I will concede right now that there will be some similarities with other blogs. Over the course of this blog I intend to share some personal, practice-oriented insights that have been touched on by others. That's where some similarities with other blogs may become evident. On the other hand, I intend to focus on the more narrow perspective of how to prepared and develop a prior art invalidity defense. I haven't yet come across many blogs with that perspective.
So one of the answers to "why write this blog" is to share experiences in the trenches with other lawyers about patent litigation defenses in a less formal, but more interactive way, so that we all can learn from each other.
The other reason for the blog is marketing. I'm marketing myself, my firm, and of course, a software solution (PatDek) that can help you in your patent litigation practice. Again, this is probably similar to other patent law blogs. Differences will become more apparent over time, but until then, I hope I can hold your interest.
So here's my first attempt at helping you in your practice, and this does not relate specifically to patent litigation. Take a look at another blog that I follow that deals with the issue of the billable hour and whether it will remain the standard measurement of price/value in the practice of law. The blog is authored by Jay Shepard (Client Revolution) and I stumbled across it about 3-4 months back. It provides a different perspective about the type of dialogue that is occurring between law firms and clients. Even if you don't believe the billable hour is dying, there are a number of takeaways that can help you daily in your practice. See what you think.
That brings me back to the point of this post - why this blog (and more importantly, why write a post about why I'm doing a blog). I attempted to answer the question earlier, explaining that blogging may help in marketing. That seemed like a sensible answer. Problem is, I haven't yet told you who I am, where I practice, which law firm I work at, nor how you can try this supposedly new software I keep mentioning.
How can this blog possibly help with marketing? To help answer that question right now, I'll punt on giving a complete answer and direct you again to Jay Shepard. This "why, how, what" process is something that we're all exposed to without even thinking. Shepard touched on it in one of his posts and links to a very interesting and colorful presenter Simon Sinek. Take a look and check back soon as we move towards some concrete answers.
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