Companies function as mostly self-sufficient entities in terms of products and services: They come up with the idea, they develop the idea, then they implement the idea... and implement the idea more... and implement the idea more. For a few smart companies (Apple, Facebook, and Google for example), new ideas have been generated in-house through well constructed development efforts, and purchased from the outside by acquiring companies that came up with new ideas. However, most companies are more like Blockbuster Video and Radio Shack -- they come up with a great concept and run with it -- and primarily it -- until they go under.
If Google and Apple were to trade creative teams for a year, we would see an explosion of creativity in both companies. The reason for this was well illustrated for me by my then-six year old daughter. We visited my grandmother's apartment -- a place I'd been to many times before. My daughter asked if it was ok if she took some pictures with my camera, I said "sure", and off she went. When I later looked at the pictures, it took me a while to realize that they were all taken inside of that apartment. She had taken a close-up of a faceted clear doorknob, interesting moulding on the ceiling, the back side of a statue, and other unexpected images.
I immediately understood something critical: Even a dedicated inventor, one who embraces creativity, can become insensate to his environment. I had been at that apartment so many times -- and I had been in similar places so many times -- that it never occurred to me to look at the ceiling, the back of statues, the doorknobs when taking photos. Those things became part of the background noise. This is very similar to a phenomenon called "sensory adaptation" whereby a stimulus fades out over time as our brains begin to ignore it. So airplane engine sound, or an annoying smell, might become imperceptible to us simply because our brains decide it is part of the background and can be ignored.
This is why innovating from the inside is hard. No matter how creative a person is, they will eventually get used to the environment at any given company. They come to ignore the signals that an outsider would immediately see. Sure, innovation is possible in such an environment -- Google is proof of that -- but without a constant flow of fresh innovators, even Google's creative output will diminish over time.
If innovating from the inside is hard, the corollary is also true: Innovating from the outside is easy. An outsider takes in the totality of an environment. The outsider has yet to become insensate to the possibilities that a company's assets, employees, history, customers and other factors present.
It would be disruptive if a company were to rotate innovators through various, distant and different locations. It would be very disruptive if companies were to trade innovators for a year. It would be enormously disruptive if a company were to bring in professional innovators. Disruption has become a code word, but in this case it applies quite literally: We want to disrupt whatever sensory adaptation has taken place. We want to disrupt whatever groupthink has overtaken a company. We want to create new products and services that are capable of remaking our world. For that kind of massive innovation, the natural comfort and inattention that come with working long term in the same place, with the same people, is practically a formula for failure.
Monday, July 6, 2015
Monday, June 8, 2015
Don't change too many things at once
When debugging a computer program, it is common wisdom to make a change and test it before making another change. That way, we can see if the first change fixed the problem before making more changes.
The same thing should apply to Congressional and judicial changes to the patent system. In a few short years, we've had several major patent cases and one major legislative reform (Bilski, the America Invents Act, Myriad, and Alice).
Patents are a slow business:
A patent can take years to issue (my brother might hold the record, with a patent that he filed for on October 14, 1999 that did not issue until 13 years later, on October 16, 2012).
A patent appeal within the administrative Patent Trial and Appeal Board can take five years or more (I haven't had one of mine decided in less than three years).
Patent litigation can take years to go from initial discussions to jury verdict.
Appeals to the Federal Circuit (where most judicial patent questions are decided) can take years.
The various re-examination procedures (some created in the America Invents Act) can also take years.
So as we near the one year anniversary of the Alice Corp. case, Congress is currently considering several new pieces of legislation, each of which makes big changes in how patents work (the TROL Act and the PATENT Act).
The risk of making so many changes so rapidly to a system where the results of the changes take years to percolate is that Congress is attempting to fix problems that it (or the courts) may have already fixed. It is only after five years that we are starting to see the impact of the America Invents Act play out, and it isn't pretty. According to this report, "the price of an average US patent has dropped about 66% since the institution of the AIA IPR procedure." The report goes on to note that there are indicators that prices continue to drop, and the predicted ultimate impact of the AIA IPR provisions will be a 77% value drop.
That same article notes that there was little impact from the Alice decision until the past 4-5 months, when decisions from lower courts interpreting Alice were unexpectedly hostile to a range of patents.
If that article is even remotely correct in observing that the America Invents Act cost the economy an amount equal to about 7% of the US GDP, it would be wise and responsible to take a breath and let the changes that have already been implemented play out before changing more things.
What if we have already gone too far, and inventors are starting to abandon research and development efforts in broad areas of invention?
When it comes to the patent system, I'd change an old expression: Haste wreaks waste.
The same thing should apply to Congressional and judicial changes to the patent system. In a few short years, we've had several major patent cases and one major legislative reform (Bilski, the America Invents Act, Myriad, and Alice).
Patents are a slow business:
A patent can take years to issue (my brother might hold the record, with a patent that he filed for on October 14, 1999 that did not issue until 13 years later, on October 16, 2012).
A patent appeal within the administrative Patent Trial and Appeal Board can take five years or more (I haven't had one of mine decided in less than three years).
Patent litigation can take years to go from initial discussions to jury verdict.
Appeals to the Federal Circuit (where most judicial patent questions are decided) can take years.
The various re-examination procedures (some created in the America Invents Act) can also take years.
So as we near the one year anniversary of the Alice Corp. case, Congress is currently considering several new pieces of legislation, each of which makes big changes in how patents work (the TROL Act and the PATENT Act).
The risk of making so many changes so rapidly to a system where the results of the changes take years to percolate is that Congress is attempting to fix problems that it (or the courts) may have already fixed. It is only after five years that we are starting to see the impact of the America Invents Act play out, and it isn't pretty. According to this report, "the price of an average US patent has dropped about 66% since the institution of the AIA IPR procedure." The report goes on to note that there are indicators that prices continue to drop, and the predicted ultimate impact of the AIA IPR provisions will be a 77% value drop.
That same article notes that there was little impact from the Alice decision until the past 4-5 months, when decisions from lower courts interpreting Alice were unexpectedly hostile to a range of patents.
If that article is even remotely correct in observing that the America Invents Act cost the economy an amount equal to about 7% of the US GDP, it would be wise and responsible to take a breath and let the changes that have already been implemented play out before changing more things.
What if we have already gone too far, and inventors are starting to abandon research and development efforts in broad areas of invention?
When it comes to the patent system, I'd change an old expression: Haste wreaks waste.
Tuesday, January 27, 2015
Problems and solutions do not necessarily arrive in that order
Prolific innovators often find a solution before they encounter the problem. The iconoclastic inventor, sitting alone at a workbench furiously solving problems is a fun image, but falls short as a template for successful innovation. A far more solid path to invention is innovation-based situational awareness — keeping an eye open for problems that should be solved and for good ideas that can solve problems. Innovation is a profoundly non-linear adventure — so much so that we need not even identify the problem we are trying to solve before we gather the components we will need to solve it.
Advertisers have exploited an analogous model since the inception of advertising. Car companies, for example, know that while few people are currently shopping for a car, many people will buy a car in the next several years. Similarly, a coffee company may advertise on late night television, knowing that while few viewers are going to interrupt a night of insomnia to run out to the supermarket and buy caffeinated drinks, many of those viewers will shop for coffee in the near future. Advertisers are in the business of planting a solution in our heads before we are even aware of the problem. By the time we run out of coffee or go shopping for a car, our heads are awash with brand awareness and product information.
Invention is best done the same way: When you encounter something that strikes you as cool, amazing, interesting, valuable for a reason you cannot identify, or otherwise bearing a “wow” factor, take the time to commit that information to memory. Inventors need tools to solve problems. Waiting until the problem is identified before finding tools is akin to a carpenter showing up at a job site without tools. Sure, the carpenter can go out and purchase tools, one at a time, as needed, but if a carpenter is good at her job, she has already gathered a collection of tools that work for most jobs. So it is with innovation.
Inventions are built by combining a variety of ideas, often from different subject areas, to create a new thing that improves life for people. Generally, innovators know the areas that they are most interested in — and therefore most likely to invent in. Prolific innovators never miss an opportunity to stock their imaginations with great ideas, whether or not they know why they find those ideas attractive. Each of those ideas becomes a tool they can use to solve problems.
Thursday, January 15, 2015
The brain is a really complicated device, disinhibition is a really powerful skill
I haven't posted on this blog for a long time. I've been dealing with some medical issues (I've written extensively about them here). One thing I learned is that my brain function is heavily influenced by a medical condition I have called "CPT2 deficiency". A likely side effect of CPT2 is that sometimes my glucose level drops. The brain accounts for about 20% of our total energy use. Glucose is virtually the sole fuel for the human brain. CPT2 patients are unable to properly metabolize long chain fatty acids (i.e. nearly all of the fat in the human diet), so we rely solely on carbohydrates for energy (until we run out, then we start digesting our own muscles). This means that while most people can conserve glucose for brain function by switching to/supplementing with fatty acid metabolism, I can't do that efficiently.
The bottom line is that sometimes my brain runs low on fuel. I've written about some of the effects on my other blog. When it happens, I have trouble making decisions; I have trouble thinking linearly; I have trouble staying on topic. In short, I become disinhibited. I see connections between things that I might otherwise have missed. I have difficulty accepting "normal" solutions. This is not so great for getting my bills paid on time, but it is a pretty good environment for innovation. Also of interest along these lines is that my brother, who is also a prolific inventor, shares my CPT2 genetics.
In looking at my own experience, I learned that innovation is facilitated by certain physiological brain states. I'm lucky in that I float between good linear thinking (when my CPT2 symptoms are absent) and a more disinhibited, non-linear, creative mode (when I have some level of CPT2 issues).
I recently came to understand this phenomenon by sharing experiences with other CPT2 patients via a Google Group. Because this is new information for me, I have not yet figured out the implications.
I do know that I can keep this from happening very often by regularly supplementing my diet with MCT Oil and carb-rich foods. The question is whether it will impact my creativity. I think that the answer is "not as much as you might think". Over my life, I've learned what it feels like to be in a good linear thinking state, in a disinhibited state, and pretty much in every place in between. While being forced into a disinhibited state frequently as a child (via CPT2) was helpful in forming a natural understanding of how disinhibited states feel and work, a genetic anomaly is not a prerequisite for getting into a creative space.
Once you start looking for it, you frequently find people who experience disinhibited, creative states, yet who waste those opportunities because they do not think such a state is a good one for getting things accomplished. The good news is that tough, linear data processing seems to use an entirely different part one's mental energy than creative thinking does. Being "zonked" after a tough day at work can be an excuse to sit on a sofa and watch television -- but it can also be a sign that your brain is primed for non-linear, creative thinking. It is not a coincidence that people who are successful in non-creative fields have creative hobbies like photography, music, writing or art.
The take-away is that you should not assume that some brain states are naturally bad. Instead, each brain state is an opportunity to explore the possibilities. I spent all of my life thinking that when I was having trouble working, it meant that I couldn't work. How wrong I was. When I have trouble doing the linear stuff is when I do my best at creative work. When I have trouble creating things is often when I can do the linear work of implementing my creations. So the next time your kids leave you exhausted, you can thank them for priming your creativity.
The bottom line is that sometimes my brain runs low on fuel. I've written about some of the effects on my other blog. When it happens, I have trouble making decisions; I have trouble thinking linearly; I have trouble staying on topic. In short, I become disinhibited. I see connections between things that I might otherwise have missed. I have difficulty accepting "normal" solutions. This is not so great for getting my bills paid on time, but it is a pretty good environment for innovation. Also of interest along these lines is that my brother, who is also a prolific inventor, shares my CPT2 genetics.
In looking at my own experience, I learned that innovation is facilitated by certain physiological brain states. I'm lucky in that I float between good linear thinking (when my CPT2 symptoms are absent) and a more disinhibited, non-linear, creative mode (when I have some level of CPT2 issues).
I recently came to understand this phenomenon by sharing experiences with other CPT2 patients via a Google Group. Because this is new information for me, I have not yet figured out the implications.
I do know that I can keep this from happening very often by regularly supplementing my diet with MCT Oil and carb-rich foods. The question is whether it will impact my creativity. I think that the answer is "not as much as you might think". Over my life, I've learned what it feels like to be in a good linear thinking state, in a disinhibited state, and pretty much in every place in between. While being forced into a disinhibited state frequently as a child (via CPT2) was helpful in forming a natural understanding of how disinhibited states feel and work, a genetic anomaly is not a prerequisite for getting into a creative space.
Once you start looking for it, you frequently find people who experience disinhibited, creative states, yet who waste those opportunities because they do not think such a state is a good one for getting things accomplished. The good news is that tough, linear data processing seems to use an entirely different part one's mental energy than creative thinking does. Being "zonked" after a tough day at work can be an excuse to sit on a sofa and watch television -- but it can also be a sign that your brain is primed for non-linear, creative thinking. It is not a coincidence that people who are successful in non-creative fields have creative hobbies like photography, music, writing or art.
The take-away is that you should not assume that some brain states are naturally bad. Instead, each brain state is an opportunity to explore the possibilities. I spent all of my life thinking that when I was having trouble working, it meant that I couldn't work. How wrong I was. When I have trouble doing the linear stuff is when I do my best at creative work. When I have trouble creating things is often when I can do the linear work of implementing my creations. So the next time your kids leave you exhausted, you can thank them for priming your creativity.
Thursday, January 16, 2014
Redesigning Life's User Interfaces
Inventors are really good at pattern matching, and we easily see how one thing is analogous to another. At the same time, a lot of innovation starts with the discovery of a new understanding of an old problem. Inventors often find themselves saying "We've been trying to solve a problem with regard to A, but we've already solved a lot of it with regard to B, and B is like A...." Innovation by analogy.
I was listening to a discussion about voting rights last month when I realized that voting is the user interface for democracy. Of course, it is only an analogy so it is imperfect, but it is close enough for us to immediately see a lot of the ways we need to improve voting. Apple is well respected for their excellent user interface design, making their portable devices among the world's easiest devices to use. Their basic guidance for iOS applications is simple:
Another way to think about it is to ask yourself "if Steve Jobs were alive and in charge of setting up the user interface for democracy, what would it look like?"
For one, he would fire anybody who tried to make it harder than it already is. He would insist that any authentication system cause as little trouble for users as possible. Once authenticated, he would want the authentication to remain valid as long as possible without requiring the user to re-authenticate every time. He would insist on voters being able to use their interface to democracy at whatever time and place is convenient to them. He would take steps to prevent fraud (just as Apple takes strong measures to prevent "Jail Breaking", or rooting of their phones), but he wouldn't cripple the entire ecosystem in the process.
Once we start to think about life in terms of user interfaces, we see that user interfaces are all around us. Communication and shared activities are our user interfaces to our friends and family. Meditation and self-reflection are our conscious mind's user interfaces to our subconscious. Our physicians are our user interfaces to the health care system (or should be -- insurance companies are not good user interface designers). Teachers and books are our children's user interfaces to education. Tax forms are our user interfaces to the tax system. Store clerks are our user interfaces to stores. Judges, lawyers and juries are our user interface to the legal system.
Everything has a user interface. Any time we have the opportunity to create or modify a user interface, we should be very aware of what we are doing. Don't make things harder to use. Don't add design elements just for the sake of showing off or making things harder. In fact, Apple's three elements of deference, clarity and depth may be all we need to create a much better world.
iOS 7 embodies the following themes:Imagine if politicians decided to write rules requiring that all voting systems follow those three simple rules. Deference to content, meaning that the user interface never gets in the way of voting. Clarity, meaning that the design is motivated by keeping the content clear and functional. Depth, meaning that the users are able to better understand what they are voting on.
● Deference. The UI helps users understand and interact with the content, but never competes with it.
● Clarity. Text is legible at every size, icons are precise and lucid, adornments are subtle and appropriate, and a sharpened focus on functionality motivates the design.
● Depth. Visual layers and realistic motion impart vitality and heighten users’ delight and understanding.
Another way to think about it is to ask yourself "if Steve Jobs were alive and in charge of setting up the user interface for democracy, what would it look like?"
For one, he would fire anybody who tried to make it harder than it already is. He would insist that any authentication system cause as little trouble for users as possible. Once authenticated, he would want the authentication to remain valid as long as possible without requiring the user to re-authenticate every time. He would insist on voters being able to use their interface to democracy at whatever time and place is convenient to them. He would take steps to prevent fraud (just as Apple takes strong measures to prevent "Jail Breaking", or rooting of their phones), but he wouldn't cripple the entire ecosystem in the process.
Once we start to think about life in terms of user interfaces, we see that user interfaces are all around us. Communication and shared activities are our user interfaces to our friends and family. Meditation and self-reflection are our conscious mind's user interfaces to our subconscious. Our physicians are our user interfaces to the health care system (or should be -- insurance companies are not good user interface designers). Teachers and books are our children's user interfaces to education. Tax forms are our user interfaces to the tax system. Store clerks are our user interfaces to stores. Judges, lawyers and juries are our user interface to the legal system.
Everything has a user interface. Any time we have the opportunity to create or modify a user interface, we should be very aware of what we are doing. Don't make things harder to use. Don't add design elements just for the sake of showing off or making things harder. In fact, Apple's three elements of deference, clarity and depth may be all we need to create a much better world.
Monday, January 13, 2014
General thoughts on the question "I have an invention and I want a patent ... what do I do?"
I'm frequently approached by people who tell me that they have an invention they want to patent, but aren't sure how to proceed. Each situation is different. There is no single good answer, because the best answer for one innovation is often the worst answer for another. I enjoy talking and thinking about innovation, and I learn a lot every time I talk with a fellow innovator (and *everybody* is an innovator -- some of you just don't realize it). This post is not intended as a way of saying "I answered that already, check online". It is intended to give innovators an idea about how the process sometimes works, and to establish a little bit of common language for people who want to discuss innovation with me. * Note: This article is not intended as legal advice. All inventions are different, and you need to see a patent lawyer about yours. *
So.... You have an invention. First things first: All patents require innovation, but not all innovations can be patented. Patents apply only to a subset of all possible inventions. Democracy is an example of a terrific innovation that would not be patent-eligible. The patent-eligibility line lies somewhere between obviously non-eligible innovations like representative democracies and obviously eligible innovations like the artificial heart.
The first hurdle is whether your innovation is the kind of thing you can patent. Sometimes the answer is easy, but for a surprisingly large number of innovations, the answer is unknown. The language defining patent eligibility in the United States has been essentially unchanged for 220 years, yet the courts are still struggling to figure out where that line lies -- and the ongoing ambiguity is not one of precise line placement, but rather of where the line falls within a broad zone of ambiguity.(see Note 1 below and this article). The Supreme Court is taking another crack at figuring it out this year, and it remains to be seen whether we will have a better idea about where the line is drawn then (detail in Note 2 below) [UPDATE: Patent eligibility remains a murky area of law]. Until then, the best advice I can give you on subject matter eligibility is this: Stop trying to answer this question by searching online, because for a lot of inventions the answer is literally unknown. Hire a patent lawyer and just hope that the lawyer guesses right about what the law currently is and where it is going.
The next hurdles are far better defined. The invention must be (1) useful; (2) novel; and (3) not obvious. Again, a patent lawyer is your go-to person for an actual answer. If, at the time you filed for the patent (note that it is no longer at the time you invented the thing), somebody skilled in the art wouldn't have found your invention obvious, and nobody else has actually made the thing already, you're in good shape.
What if you can't afford a patent lawyer, or if you want to minimize your costs while you drum up investors (or think about the viability of the product, etc)? You can file a provisional patent application. A provisional patent application costs $130 (or in some cases $65) to file. It doesn't need to set out formal claims or follow most of the other requirements for formal patent applications.
Thanks to a provision in the America Invents Act, it is critical that you file at least a provisional application as soon as possible. Even if you invent first, if a later inventor beats you to the patent office, they will get the patent and you won't (with some complex and rare exceptions that your patent lawyer can explain).
A lot of the time people file provisionally without a lawyer, but doing so on your own does present some risk. In fact, while in some cases a provisional patent application makes sense, doing a provisional filing with or without a lawyer is not without risk (for example, if you use a provisional to postpone paying for a full utility application, you may find that your provisional application is missing some elements you later want to claim, and you might lose the priority date you think the provisional gives you). In some cases, particularly where there is a question about subject matter patent eligibility, you may be better off treating it as a trade secret. If you are ready to launch a product and want an issued patent ASAP, you might want to go with an expedited "Track 1" application. I know, to people outside of patent land none of that makes easy sense, but that alone is good reason to talk with a patent lawyer.
That said, I'm not a patent lawyer (I'm a licensed California lawyer, but my patent work revolves around developing and patenting my own inventions), and I can tell you that nearly all lawyers who work with patents lack the holistic picture inventors need. Basically, you're not looking for a patent just for fun (or if you are, that is some expensive fun). Rather, it needs to fit into your business plan. You need to be aware of costs, timing, and ultimately how your patent prosecution strategy impacts your ability to later monetize your patent (for example, by keeping competitors from ripping off your idea).
In the course of your patent's lifespan, you're likely to run into at least two legal requirements -- first, you need a lawyer to get your patent issued (yes, you can do it without a lawyer, just like you might be able to set your own broken arm without going to a doctor). That "patent prosecution" lawyer normally views the job as "get the patent issued". But a patent prosecutor doesn't know your business. Second, if you are lucky enough to get a patent that covers something valuable and unlucky enough that somebody else is ripping off your invention, you need a lawyer to enforce or license your patent (again, you can do it yourself, but it isn't easy to do it right).
One thing that your patent prosecution team won't do for you is think through the actual use of your invention in a way that leads to additional claims, patent elements, etc. Remember that your invention is not going to stand alone. Rather, the invention will take its place in an ecosystem where additional functions or small adjustments may be critical to success. Don't limit your patent filing to what you think is the most likely implementation and use of your invention. The future can be forecast, but is unwritten. You can easily be surprised to find that something you considered a minor piece of your invention turns out to be the primary source of value in your patent. You are already sharing your invention and creativity with the world -- you might as well spend some extra time making sure you don't leave the invention half done.
I should also point out that you have some enforcement choices. Please don't be a jerk about it. Some patent owners will threaten or sue individual end users of a product that is actually made by a bigger company. Technically, those individuals are infringing, but you should think long and hard about whether it is right to go after individuals and small family businesses before going after the entity that supplied them with the infringing product. Sometimes it makes sense, but it should be done only after giving a lot of thought to whether it is the right way to go about it.
I know I said it a bunch of times already, but to reiterate: See a patent lawyer. Seriously. A seemingly tiny error in drafting can mean the difference between validity and invalidity of a patent.
Note 1: The U.S. Constitution authorized patents ("Congress shall have the power... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries...", Art. 1, Section 8, Clause 8). The Patent Act of 1793 described the kinds of innovations eligible for patent protection very broadly: "any new and useful art, machine, manufacture or composition of matter, or any new and useful improvement on any art, machine, manufacture or composition of matter". The language in effect more than 220 years later is nearly identical: "any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title".
Note 2: Bear in mind that the Supreme Court normally determines what the language in the statute has always meant -- meaning that filing for a patent prior to the Court's decision is unlikely to make any difference. If the Court decides your innovation is not patent-eligible, the decision will apply whether you already hold an issued patent, whether you were previously on file with an application, or whether you have yet to file an application. Congressional changes to patent law (and yes, they're also likely to make some big changes to other parts of patent law) are different, and for those changes filing dates frequently matter.
So.... You have an invention. First things first: All patents require innovation, but not all innovations can be patented. Patents apply only to a subset of all possible inventions. Democracy is an example of a terrific innovation that would not be patent-eligible. The patent-eligibility line lies somewhere between obviously non-eligible innovations like representative democracies and obviously eligible innovations like the artificial heart.
The first hurdle is whether your innovation is the kind of thing you can patent. Sometimes the answer is easy, but for a surprisingly large number of innovations, the answer is unknown. The language defining patent eligibility in the United States has been essentially unchanged for 220 years, yet the courts are still struggling to figure out where that line lies -- and the ongoing ambiguity is not one of precise line placement, but rather of where the line falls within a broad zone of ambiguity.(see Note 1 below and this article). The Supreme Court is taking another crack at figuring it out this year, and it remains to be seen whether we will have a better idea about where the line is drawn then (detail in Note 2 below) [UPDATE: Patent eligibility remains a murky area of law]. Until then, the best advice I can give you on subject matter eligibility is this: Stop trying to answer this question by searching online, because for a lot of inventions the answer is literally unknown. Hire a patent lawyer and just hope that the lawyer guesses right about what the law currently is and where it is going.
The next hurdles are far better defined. The invention must be (1) useful; (2) novel; and (3) not obvious. Again, a patent lawyer is your go-to person for an actual answer. If, at the time you filed for the patent (note that it is no longer at the time you invented the thing), somebody skilled in the art wouldn't have found your invention obvious, and nobody else has actually made the thing already, you're in good shape.
What if you can't afford a patent lawyer, or if you want to minimize your costs while you drum up investors (or think about the viability of the product, etc)? You can file a provisional patent application. A provisional patent application costs $130 (or in some cases $65) to file. It doesn't need to set out formal claims or follow most of the other requirements for formal patent applications.
Thanks to a provision in the America Invents Act, it is critical that you file at least a provisional application as soon as possible. Even if you invent first, if a later inventor beats you to the patent office, they will get the patent and you won't (with some complex and rare exceptions that your patent lawyer can explain).
A lot of the time people file provisionally without a lawyer, but doing so on your own does present some risk. In fact, while in some cases a provisional patent application makes sense, doing a provisional filing with or without a lawyer is not without risk (for example, if you use a provisional to postpone paying for a full utility application, you may find that your provisional application is missing some elements you later want to claim, and you might lose the priority date you think the provisional gives you). In some cases, particularly where there is a question about subject matter patent eligibility, you may be better off treating it as a trade secret. If you are ready to launch a product and want an issued patent ASAP, you might want to go with an expedited "Track 1" application. I know, to people outside of patent land none of that makes easy sense, but that alone is good reason to talk with a patent lawyer.
That said, I'm not a patent lawyer (I'm a licensed California lawyer, but my patent work revolves around developing and patenting my own inventions), and I can tell you that nearly all lawyers who work with patents lack the holistic picture inventors need. Basically, you're not looking for a patent just for fun (or if you are, that is some expensive fun). Rather, it needs to fit into your business plan. You need to be aware of costs, timing, and ultimately how your patent prosecution strategy impacts your ability to later monetize your patent (for example, by keeping competitors from ripping off your idea).
In the course of your patent's lifespan, you're likely to run into at least two legal requirements -- first, you need a lawyer to get your patent issued (yes, you can do it without a lawyer, just like you might be able to set your own broken arm without going to a doctor). That "patent prosecution" lawyer normally views the job as "get the patent issued". But a patent prosecutor doesn't know your business. Second, if you are lucky enough to get a patent that covers something valuable and unlucky enough that somebody else is ripping off your invention, you need a lawyer to enforce or license your patent (again, you can do it yourself, but it isn't easy to do it right).
One thing that your patent prosecution team won't do for you is think through the actual use of your invention in a way that leads to additional claims, patent elements, etc. Remember that your invention is not going to stand alone. Rather, the invention will take its place in an ecosystem where additional functions or small adjustments may be critical to success. Don't limit your patent filing to what you think is the most likely implementation and use of your invention. The future can be forecast, but is unwritten. You can easily be surprised to find that something you considered a minor piece of your invention turns out to be the primary source of value in your patent. You are already sharing your invention and creativity with the world -- you might as well spend some extra time making sure you don't leave the invention half done.
I should also point out that you have some enforcement choices. Please don't be a jerk about it. Some patent owners will threaten or sue individual end users of a product that is actually made by a bigger company. Technically, those individuals are infringing, but you should think long and hard about whether it is right to go after individuals and small family businesses before going after the entity that supplied them with the infringing product. Sometimes it makes sense, but it should be done only after giving a lot of thought to whether it is the right way to go about it.
I know I said it a bunch of times already, but to reiterate: See a patent lawyer. Seriously. A seemingly tiny error in drafting can mean the difference between validity and invalidity of a patent.
Note 1: The U.S. Constitution authorized patents ("Congress shall have the power... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries...", Art. 1, Section 8, Clause 8). The Patent Act of 1793 described the kinds of innovations eligible for patent protection very broadly: "any new and useful art, machine, manufacture or composition of matter, or any new and useful improvement on any art, machine, manufacture or composition of matter". The language in effect more than 220 years later is nearly identical: "any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title".
Note 2: Bear in mind that the Supreme Court normally determines what the language in the statute has always meant -- meaning that filing for a patent prior to the Court's decision is unlikely to make any difference. If the Court decides your innovation is not patent-eligible, the decision will apply whether you already hold an issued patent, whether you were previously on file with an application, or whether you have yet to file an application. Congressional changes to patent law (and yes, they're also likely to make some big changes to other parts of patent law) are different, and for those changes filing dates frequently matter.
It's Dark Between All of These Photons
The heart of innovation is the moment that reorients your thinking. Everybody -- you included -- has always looking at something one way, and then you realize there is another way to see it. This short post is intended to provide two examples of things you can see differently.
The post's title probably gives this one away, but let's rethink something really basic: Light. We know that light can be bright or dim, can be blocked to cast shadows, can occur in different wavelengths, and can be split into component wavelengths by a prism. Our thinking about light, though, includes one enormous assumption: We are big. From the perspective of something the size of a subatomic particle, light would be perceived in an entirely different way. There are a limited number of photons hitting a surface at any given time, and if we are small enough, we can go quite some time without being hit. Without even getting into the wave/particle distinction or how we define the size of a photon, we can easily see how light can be analogized to fog. When it is foggy, the entirety of the atmosphere doesn't turn into water; instead, there are many tiny water particles amid otherwise dry air. Similarly, when a surface is lit up with photons, there are large portions of the surface that are, at a given time, not being hit by photons. In other words, it's dark between all of these photons.
Now imagine that I am standing on a flat surface pointing straight up. I then call you via video conference, have a friend show you what I'm doing, and ask you to point in the same direction I'm pointing. Most people would simply point up. There are many likely assumptions that go into this response, and the accuracy of each of them is critical to whether "up" is the right response. Note that I reference "likely" assumptions. Innovation is not about guessing the answer to a trick question, so we can forget about answers based on deception, such as imagining that I asked the question while standing in a giant centrifuge. Instead, look for things that reorient how you understand the question. Did you think about where I am relative to you? If I'm in Moscow and you're in San Francisco, "up" for me is "down" for you. In those circumstances, you should have pointed to the ground. Even if we're standing next to each other and Jupiter is directly overhead, I may point "in the direction of Jupiter", but the rotation of the earth is such that by the time you've pointed, you are probably off by a small amount.
There is a concept in psychology called "fundamental attribution error". Wikipedia explains it as "people's tendency to place an undue heavy emphasis on internal characteristics to explain someone else's behavior in a given situation, rather than thinking about external situational factors". There is a similarity between fundamental attribution error and a failure to innovate. We try to answer the question we think has been asked, rather than taking a step back and making sure we aren't missing something crucial in the very framework in which the the question exists. Great innovations often happen when innovators realize that everybody else has been trying to answer the wrong question, or relying on incorrect assumptions in understanding the question.
The post's title probably gives this one away, but let's rethink something really basic: Light. We know that light can be bright or dim, can be blocked to cast shadows, can occur in different wavelengths, and can be split into component wavelengths by a prism. Our thinking about light, though, includes one enormous assumption: We are big. From the perspective of something the size of a subatomic particle, light would be perceived in an entirely different way. There are a limited number of photons hitting a surface at any given time, and if we are small enough, we can go quite some time without being hit. Without even getting into the wave/particle distinction or how we define the size of a photon, we can easily see how light can be analogized to fog. When it is foggy, the entirety of the atmosphere doesn't turn into water; instead, there are many tiny water particles amid otherwise dry air. Similarly, when a surface is lit up with photons, there are large portions of the surface that are, at a given time, not being hit by photons. In other words, it's dark between all of these photons.
Now imagine that I am standing on a flat surface pointing straight up. I then call you via video conference, have a friend show you what I'm doing, and ask you to point in the same direction I'm pointing. Most people would simply point up. There are many likely assumptions that go into this response, and the accuracy of each of them is critical to whether "up" is the right response. Note that I reference "likely" assumptions. Innovation is not about guessing the answer to a trick question, so we can forget about answers based on deception, such as imagining that I asked the question while standing in a giant centrifuge. Instead, look for things that reorient how you understand the question. Did you think about where I am relative to you? If I'm in Moscow and you're in San Francisco, "up" for me is "down" for you. In those circumstances, you should have pointed to the ground. Even if we're standing next to each other and Jupiter is directly overhead, I may point "in the direction of Jupiter", but the rotation of the earth is such that by the time you've pointed, you are probably off by a small amount.
There is a concept in psychology called "fundamental attribution error". Wikipedia explains it as "people's tendency to place an undue heavy emphasis on internal characteristics to explain someone else's behavior in a given situation, rather than thinking about external situational factors". There is a similarity between fundamental attribution error and a failure to innovate. We try to answer the question we think has been asked, rather than taking a step back and making sure we aren't missing something crucial in the very framework in which the the question exists. Great innovations often happen when innovators realize that everybody else has been trying to answer the wrong question, or relying on incorrect assumptions in understanding the question.
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