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In the chemical technology world, it often happens that one company will engage another in the manufacture of some particular substance. Company A needs a particular material made according to certain specifications. Company A goes to Company B to ask for price and availability.  But first, Company A must disclose the identity and certain particulars of the material to Company B.

For Company A to disclose the identity of its material, it must work out a secrecy agreement with Company B. Company A’s business depends on the material and it does not want Company B to disclose the details of the material, the process, or any other aspect of the business. So, they execute a secrecy agreement.

What is interesting about such arrangements is the great diversity of “language” in the terms among companies. Some companies are very concerned about the faintest smidgeon of errant information and write detailed terms accordingly. Others are much more concerned about the broad strokes and are apparently willing to let the courts work out the details in a conflict.

Some companies are willing to yield on unreasonable terms and conditions while others will fight to the death on even the slightest change.  There is a strong correlation to the corporate culture and the extent to which a company is under a market pull influence (tolling operators) or is engaged in technology push (inventors).

In some companies, issues relating to intellectual property (IP) are strongly influenced by the lawyers.  In such an organization, it sometimes happens that management is completely immobilized by indecision in IP matters. Managers may not understand the IP, are unable to engage their own lawyers in detailed discussion about the issue, or may simply be terrified of making a mistake. Doing business with organizations that are highly rigid in deference to their lawyers tends to be a more difficult activity. The thinking is that if the lawyer makes the decision, then they can take the heat if it goes south. Of course, the lawyer won’t take the heat- they’ll just bill you to get you out of the mess.

In other companies, upper management will take legal advice, but will not leave the decisions to the lawyers. These managers understand that IP is company treasure that must be put to good use in order to bring in revenues. Lawyers get paid irrespective of the outcome in the advice dispensing trade. A good manager knowns how to ride a lawyer like a cutting horse, digging in the spurs now and then to show who’s boss.

IBM people are prodigous inventors. In 2007 alone, IBM was allowed 3,125 US patents. In the period from 1993 through 2007, IBM has acquired 38,707 US patents.  I can visualize the torrents of office actions flooding out of some pipe from the USPTO into the mailroom at IBM Galactic Headquarters.

Imagine trying to enforce this collection of patents. Crimony! With this many patents- and who knows how few are abandoned- IBM must be involved in litigation almost continuously. Imagine the legions of confident, white-shirted IBM attorneys marching in lockstep, “Think!” banners streaming in the breeze!  It would be fascinating to see how they make these patents actually result in cash flow. Who knows, IBM may have the biggest patent picket fence in the universe?!

I caught myself writing like a patent lawyer today. It was a little unnerving.

In the instant example … blah blah … the preferred embodiment … blahty blah blah … a plurality of moieties … blah blah … the said R group … yawn … including, but not limited to …

It is surprising how easy it is to fall into the style of writing that characterizes patent applications.  It is easy to poke fun at our lawyerly brethren for this.  But the stylistic manner and the use of precise vocabulary with elaborate sentence construction is the result of generations of bitter experience in court. A long time ago, lawyers figured out that you have to say precisely what you mean to get what you want.  

Judges and juries have to arrive at conclusions based on something, so if your fate rests on their interpretation of ambiguous language, you may be in for disappointment.  Precise language is meant to prevent misunderstanding and place rewards and liabilities where they belong.

For chemists who are busy inventing things, it is useful to actually study the form and the language in a handful of patents.  This will give a sense of how intellectual property is actually staked out and claimed.  It is useful for the chemist to provide some guidance to the attorney in drafting claims and maximizing the value of the patent.

I deleted the “plurality of moieties” in the final draft. Just couldn’t do it.

The website Latepatents.net has collated a top 100 list of companies with a link to their individual expired US patents.  Said patents have expired due to failure to pay maintenance fees and not due to normal expiry. I checked a random sampling at the USPTO and found that indeed the patents were expired.

Readers will have to determine for themselves the value of these heaps of company treasure lying about the Public Domain landscape like so many abandoned Buicks, tanks still full of gas.

Given the quality of the companies that have the prematurely expired patents, and the resources they surely spend on IP management, I’ll hazard a guess that most of these patents were allowed to expire on purpose.

Patents are obtained for many reasons. One invention might lead to prompt and exclusive sales and profits for its owner. Another invention might lead to possible cash flow in the future if certain circumstances align properly. Some patents may be intended to be put up for lease or sale. Still other inventions serve to block competitors from facile entry into your line of business, so called “picket fence” patents.

It is not unusual for a given bit of intellectual property to become obsolete before the natural expiration of the patent. Technology can advance sufficiently such that a process or composition is no longer competitive. A company can move away from a technology package for business reasons having nothing to do with the suitability of the patented art.

Finally, I think that some patents are obtained simply because the company has a “policy” that requires the disclosure of inventions and subsequent mechanical submission to the attorneys. If you are a hammer, everything looks like a nail. If you’re running an intellectual property office, every disclosure looks like a patent. 

If too many “improvements” turn into applications, it may not be the fault of over-eager patent attorneys. More likely, it is the result of choices made by company management. I have witnessed a few circumstances where managers have been reluctant to exercise business judgement and have heaped the decision to patent solely upon the hapless attorney. What choice does the attorney have but to prosecute the patent?

It is my opinion that business people far too frequently allow their attorneys to make IP business decisions for them. The typical excuse is that it is a “legal matter”. The question for a business person is this- Can we make a choice that prevents the issue from becoming a legal matter?  Sometimes we use lawyers because we need a surrogate to do the dirty work for us.

The common default choice found in IP is that if it can be patented it should be patented. This is an expensive and weak-minded philosophy and I’ll wager that the patents in the aforementioned list are expired as a result of some second thoughts on the value of these inventions.

The Google Patent Search tool seems to be rather useful for some kinds of patent search activity. I had been using SciFinder or other search tools to find patent numbers that I would then enter into pat2pdf.org to get a single download file copy of the patent. The reason for going to pat2pdf was that it would combine the individual pages of the patent  from the USPTO and download a single combined pdf document of the patent. The Google search tool does this and more.

Our patent office seems to have failed to catch on to the fact that users would prefer not to download patents 1 page per file. Maybe the USPTO has changed this recently or has an upgrade in process. I don’t know.

Among the nice features, it provides links to citation and reference patents. It also provides links to the US classification designations listed in the patent. The default page seems to include the claims and with the click of a button the user can pull up the description or abstract. It also provides a link to download a pdf of the patent or a direct link to the USPTO.  A person can scan a patent without having to download a pdf.

I would say that Google has a handy search tool for at least fairly superficial work.

The chemical business is, after all, a business.  You have to make something that somebody wants. Brilliant ideas are a dime a dozen. Getting a new product to market is harder than you might expect, even if you have a purchase order in hand. The transition from bench to 1000 gallon reactor is often full of unanticipated problems.  The process of forcing a new product or technology on a market that didn’t exactly ask for might be called “Technology Push”.  The process of responding directly to a clear market demand is called “Market Pull”.

Market pull is a force that business types, especially the MBA’s, feel best about.  It is easy to justify the allocation of resources to launch into a product development cycle that addresses a clear and quantifiable demand.  Duh. It’s a no-brainer. That is, if there are no bottlenecks to get through. The merits of market pull are only valid if the proposed technology has been shown to work to specifications. Beware of the inventor who cannot produce a prototype to back his/her patent.

Technology push is a circumstance wherein a company has a product or technology that might stimulate demand if it were marketed properly.  Now, an economist might say that there is no such thing as stimulating demand. They’ll patiently explain that this only stimulates an underlying demand that may not have been articulated. Whatever formalism you prefer, it is possible to dazzle potential customers with a new capability.  Clever people can dream up applications that the original inventors could have never anticipated. Look at Symyx with their fantastic technology package for high throughput experimentation.

It is a bit easier to write a business plan based on market pull because the job of forecasting revenue flows should be based on measurable market conditions. Again, the assumption is that the proposed response to the market pull is a technology that works.

A business plan based on technology push has to incorporate estimates of acceptance of change. You see, technology push is the realm of the paradigm shift.  Predicting outcomes from the early side of the timeline is very tricky.  Customers for paradigm shift technologies may be scarce.  Not all companies are interested in being an early adopter or a buyer of first generation technology. 

Market pull is the domain of orthodoxy, of the rightous and proper company president who is also a CPA and who worked his way up the ladder from the accounts receivable department. Technology push is the domain of the engineers and scientists.  These are the dreamers who know in their hearts that if you build it, they will come.

Successful technology companies are somehow able to give a voice to the technology people in the allocation of resources.  Very often, these companies are managed by chemical engineers. While ChemE’s may not be trained in advanced synthesis R&D, they are involved in the scale up and economics of new processes.  Chemists live in a 2-dimensional world of space and time.  Chemical engineers live in the 3-dimensional world of space, time, and money.  Their knowledge of economics is what causes them to rise to the top of the corporate ladder more frequently than chemists.

It seems to me that companies that thrive today are those who do both market pull and technology push. Market pull is the cash cow.  Technology push is the seed corn for next years crop.

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