Patently Strategic - Patent Strategy for Startups
Patently Strategic - Patent Strategy for Startups
Patent Searching: Sleuthing Your Way to Stronger Patents
You have an idea and you’d like to protect it. But can you? Is it novel? Non-obvious? Would you eventually be able to license or enforce your patent down the road? Who else is competing in this area and where’s the whitespace? If you get the patent, can you freely produce and sell the idea, without the costly risk of infringement litigation?
These questions and the quest for their answers unfold like a detective mystery. The sheer magnitude of source material to sift through is overwhelming. 172 countries with patent systems, over 11 million active patents across the globe, millions more published, but not granted, topped off with endless volumes of non-patent literature. A multitude of keywords, synonyms, and domain specific languages. Countless databases. A cacophony of clues, mixed with an abundance of superficially convincing evidence that could ultimately prove irrelevant. An overly litigious villain competitor lurking around the corner. And the greater powers of observation and the superior mind of a detective to cut through it all and make plain the answers to our untrained eyes!
Shelley Couturier, Patent Strategist, Search Specialist, and Chief Sleuth here at Aurora, leads a discussion along with our all star patent panel into the low cost, high return world of patent searching. The domain is complex, but the efforts have one of the highest possible ROIs of anything you can do, especially in the early stages of your patent journey. With some practical guidance and a little help, patent searching will save you significant time, money, and effort in the long run, all while yielding a much stronger patent overall. I assure you, listening in will be a gift to future self.
Shelley is joined today by an exceptional group of IP experts including:
* Ashley Sloat – President & Director of Patent Strategy at Aurora Consulting
* David Cohen – Principal at Cohen Sciences
* Amy Fiene – Patent attorney at Vancott and adjunct professor at BYU
Oh – and back by popular demand, the group kicks off with another gripping ice breaker, which turns into an instant classic.
***
** Resources **
* Show notes: https://www.aurorapatents.com/blog/new-podcast-patent-searching
* Slides: https://www.slideshare.net/JoshSloat1/patent-searching-sleuthing-your-way-to-stronger-patents
** Follow Aurora Consulting **
* Home: https://www.aurorapatents.com/
* Twitter: https://twitter.com/AuroraPatents
* LinkedIn: https://www.linkedin.com/company/aurora-cg/
* Facebook: https://www.facebook.com/aurorapatents/
* Instagram: https://www.instagram.com/aurorapatents/
And as always, thanks for listening!
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WEBVTT
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G'day. And welcome to the Patently Strategic Podcast, where we discuss
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all things in the intersection of business, technology and patents.
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This podcast is a monthly discussion amongst experts in the field of
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patenting. It is for inventors, founders and IP professionals alike,
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established or aspiring. And in this episode, we take a deep dive
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into the essential art of patent searching. You have an idea and you'd
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like to protect it, but can you? Is it novel, non obvious?
00:30.520 --> 00:33.820
Would you eventually be able to license or enforce your patent down the road?
00:33.960 --> 00:37.050
Who else is competing in the area and Where's the white space?
00:37.260 --> 00:40.740
If you get the patent, can you freely produce and sell the idea without
00:40.750 --> 00:44.140
the costly risk of infringement litigation? These questions in
00:44.150 --> 00:46.930
the quest for their answers unfold like a Detective mystery,
00:49.470 --> 00:52.630
the sheer magnitude of source material to sift
00:52.640 --> 00:55.960
through is overwhelming. 172 countries of
00:55.970 --> 00:59.110
patent systems, over 11 million active patents across the
00:59.120 --> 01:02.590
globe, millions more published but not granted, topped off with
01:03.090 --> 01:07.180
endless volumes of nonpatent literature, a multitude of keywords synonyms
01:07.190 --> 01:11.050
and domain specific languages, countless databases, a cacophony of
01:11.060 --> 01:14.500
clues mixed with an abundance of of superficially convincing
01:14.510 --> 01:18.220
evidence that could ultimately prove irrelevant. An overly litigious
01:18.230 --> 01:22.130
villain competitor lurking around the corner in the greater powers of observation
01:22.140 --> 01:25.670
in the superior mind of a Detective to cut through it all and make plain
01:25.700 --> 01:27.500
the answers to our untrained eyes.
01:29.360 --> 01:33.650
Shelley Couturier, patent strategist search specialist and chief Sleuth
01:33.660 --> 01:37.190
here at Aurora, leads a discussion, along with our all star patent panel,
01:37.310 --> 01:41.140
into the low cost, high return world of patent searching. The domain
01:41.150 --> 01:44.890
is complex, but the efforts have one of the highest possible ROIs of anything
01:44.900 --> 01:48.730
you can do, especially in the early stages of your patent journey. With some
01:48.740 --> 01:52.420
practical guidance and a little help, patent searching will save you significant
01:52.430 --> 01:55.930
time, money and effort. In the long run, all will, yielding a
01:56.430 --> 01:59.710
much stronger patent. Overall, I assure you, listening in will be
01:59.720 --> 02:03.420
a gift to future self. Shelley is joined today by an exceptional group
02:03.430 --> 02:06.810
of IP experts, including Ashley Sloat, President and director
02:06.820 --> 02:09.730
of patent strategy here in Aurora, David Cohen,
02:09.740 --> 02:13.720
principal at Cohen Sciences. And Amy Fine, patent attorney
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at Vanco, an adjunct professor at B-Y-U. Oh.
02:17.230 --> 02:21.100
And back by popular Demand, the group kicks off with another gripping icebreaker,
02:21.110 --> 02:24.850
which turns into an instant classic. I promise you'll never think
02:24.860 --> 02:28.470
about PBS NewsHour commercials the same way again. Take it away,
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Shelly.
02:32.820 --> 02:36.060
So Ashley has
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come up with this great ice breaker. We get to hear about
02:39.580 --> 02:43.770
everyone's faults, right? Imagine if you were a superhero
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and your arch nemesis mission is to annoy
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and torment you. How would they do that? I'll start
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with you, Ashley. Yeah, I've thought about this because I
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actually Josh might have created this one, but I
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think, honestly, I get a lot of satisfaction and
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value out of tightness.
03:05.410 --> 03:09.360
And so I think if everything was just complete
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disarray and no matter what I did to rectify it, it would
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continue to be disarray. I think I would be a little bit stressed about
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it, and it would bug me because I definitely like orderliness.
03:20.410 --> 03:22.410
And so I think from a content,
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we know that about you as not shocking.
03:26.500 --> 03:26.760
Right.
03:30.680 --> 03:35.160
Okay. So I can tell you that the things that I absolutely
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hate a lot of commercials,
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I absolutely. Who does it
03:41.810 --> 03:45.610
by commercial. And there's one in particular.
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I really it's
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a financial services outfit, and they're
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one of the sponsors of PBS NewsHour. So there
03:59.990 --> 04:00.610
it is again.
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It's the financial advice, the very Cush office.
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Right. Chairs and the whole
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nice office thing. And she
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she's welcoming to clients.
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Right. There's a couple comes in man and wife. And the
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currently completely appropriate, you know, middle aged type
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of couple. The man's Gray and lean
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and handsome.
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And the woman, her hair hasn't
04:40.770 --> 04:44.520
really started to turn Gray at, and she's obviously
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a little younger. And so
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this is more than you ask for. Anne by the
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Financial Advisors is. Well,
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before we get started, what's new? And have you seen
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this commercial? No, that's really interesting.
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Now I want to know what it's about.
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And the wife says,
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Well, I forget the daughter's name.
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Alice is pregnant. This is the daughter. And then
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the man says, twins.
05:27.130 --> 05:31.060
And it's just so smug.
05:33.190 --> 05:36.550
I just want to smack if you tell us how you really feel,
05:36.580 --> 05:39.700
David, that's if I could
05:39.710 --> 05:44.200
go on. But just to give you you asked Shelley at
05:44.700 --> 05:48.940
a good question. Well, now that you have torment,
05:48.950 --> 05:54.550
just be
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mind isn't mine is pretty easy. I can go with the
05:58.070 --> 06:01.900
tidiness. Don't always. I'll just work to clean that
06:01.910 --> 06:05.590
up. But for me, it would be somebody flying
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to Montana. All of those Florida flying Palmetto
06:09.590 --> 06:13.360
bugs that then chase me down, fly in my
06:13.370 --> 06:17.320
hair, crawl all over me that I would turn from
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superhero to paranoid
06:21.270 --> 06:25.010
very quickly. Super exterminator.
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Now they scare me half to death, that's for sure.
06:29.680 --> 06:33.730
So how do you know about Florida Palmetto
06:33.740 --> 06:37.060
bugs? Well, that's where I grew up. I lived with them.
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This is why I moved to Montana to get away from the Palmetto bugs.
06:40.780 --> 06:42.370
Okay. All right.
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Well, and, Amy, how would your arch nemesis
06:48.220 --> 06:52.020
torment you? In other words, what's the thing that bothers you a
06:52.140 --> 06:55.320
lot and that somebody would use against you like an arch nemesis?
06:55.980 --> 06:58.740
That's a great question. Probably.
06:59.920 --> 07:02.470
Oh, goodness.
07:02.940 --> 07:06.130
Like girls can just be super catty.
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You know, the cat come out. I could see mean girls.
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It's a real thing. Like the girls out there.
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I don't see myself as a mean girl. I don't feel like I
07:19.590 --> 07:24.380
ever have been. But I feel like there are others that are. So it's
07:24.390 --> 07:27.890
just hard, you know? I don't know. But you learn, right? You learn
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how to deal with it for sure. Yeah, there's definitely. I don't know what
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it is, but you definitely come across and they don't do any other women any
07:35.490 --> 07:38.840
favors with such behavior. But there are those
07:38.850 --> 07:43.040
out there of that that pedigree
07:43.100 --> 07:44.180
or that nature,
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right. This is a safe place for
07:49.830 --> 07:51.650
in theory, no mean people.
07:52.330 --> 07:54.830
Awesome. I'll go ahead and take it away. Shelly,
07:55.200 --> 07:58.320
so briefly, we're going to talk today about
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patent searching, why inventors and companies should have
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a professional search conducted some types of searching.
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I do have some tips that I have used over the years that
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I will share. I have conducted a search,
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so I will show you I'm not going to do it real time,
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but I'll show you what I did and then how I report
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the search results to clients.
08:24.480 --> 08:27.750
So briefly, what we're going to talk
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about and then jump in whenever you like, if you have any questions,
08:31.110 --> 08:34.130
as I as I go along.
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So I think is patent agents.
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You know, we have a unique opportunity to be able
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to partner with our clients and understand their invention and
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their future goals and have some positive
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impact on their on their lives and their business.
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And I think that patent search firms
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or automated software tools don't
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actually, to some extent, cannot do that where
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we can partner with them from the beginning all the
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way to the end. And some of the initial
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steps that we can take is obviously to do some
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patent searching to help them understand
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if their invention is novel and non obvious,
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it would save them time,
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money and effort before going before
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going public. Knowing what's
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in the public domain, it gives them an early opportunity
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to be able to modify their design to overcome any existing
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art that's found. And by having properly
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scoped initial claims, it also provides them the
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opportunity to reduce prosecution costs.
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Filing overly broad claims in the beginning is
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going to provide a lot more prosecution down the road.
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Yeah. Let me just say that's
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extremely important. You know,
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I mean, my most recent experience is and
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that's one of the things they do. They always try
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to write a broad claim and
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what that does. It adds
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more and more prosecution. And really,
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what the client wants is a packet, right. I mean,
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they want something to be issued. They don't want
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endless argument. So anyway, I just want to do underscore that.
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Yes. Yes. Absolutely.
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The other thing that I
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often wonder about novelty is easier for
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lay people to understand if their claim is novel.
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But the nonobviousness peace is is
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difficult even for us. We know that there has to be a
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motivation to be able to combine those references to render something
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obvious, but I'm not sure how an automated
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software tool does that. I think you still need
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to have someone who is able to go through
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those references and analyze them and be
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able to combine them. So I
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just think that it's really important to have someone in the beginning who can walk
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with them as they go down to their
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business launch. Yeah. I think the other I think you bring up a great point,
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too, Shall, is that you an
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automated platform can't also find the two
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bits in a reference that might cause a teaching away argument
11:52.640 --> 11:56.440
or something like that. Right. You may actually, from a keyword search, find that
11:56.450 --> 11:59.920
word everywhere in a spec, but then you might actually find that the whole
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crux of the spec is that they're actually trying to do the opposite thing.
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Right. That they're the exact opposite rationale or
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completely different use case, a completely different problem. And so I think
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that's where trained eyes and truly understanding the clients
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innovation can help with that. Well,
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and to add on that, even understanding the language really
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really place into that, understanding what's
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being said. So, you know, as we know,
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patents are a business asset that add value.
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They give businesses a competitive advantage.
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And this is where an offensive patent strategy
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really helps a smaller company and a
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startup company in the beginning for
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them without having the large
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amounts of money that larger corporations have. Obviously,
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they need to know, can they freely produce and
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sell this idea?
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Would they be able to license or enforce
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their patent down the road? And at some
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point, they may want to obtain investment funds
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or stimulate an acquisition? And I think
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that some advanced offensive strategies is
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being able to capture the white space around their technology,
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and they may want to start tracking their competitors and inventors
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and the technology area in general. So Interestingly.
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I read this LinkedIn article about
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Bumble IPO earlier
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this year, and it said in the article,
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it said that they were involved in at least seven patent infringement
13:52.790 --> 13:56.510
disputes when they it made the announcement they
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were going public. And it also stated
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that a study showed that IP litigation goes up
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by 220% when a company decides to
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go public. So really, what they want to do
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offensively is mitigate this litigation
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from the beginning. The cost for lawyers
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down the road will outweigh any patent stretch
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initial patent strategy that they put
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in place. So searching is not going to mitigate
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those necessarily always from happening. But it will show that you
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very diligently looked into everything at
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the outset. Right. That you really did your diligence at the time that
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you went public or that you filed your pan application or whatever you did,
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that you really believed that you had free to operate
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or that you had a good patentability argument,
14:53.160 --> 14:56.570
good position. And so it should reduce
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it, for sure. But at minimum, it really shows that you were diligent
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and how you conducted your business with respect to your portfolio.
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And there's one thing in
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a way, I think the obviousness if you're
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searching for obviousness combinations in
15:17.410 --> 15:22.770
a way, I sort of given up on that because you
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never know what the examiner is going to find.
15:26.480 --> 15:30.180
The mindset I use really isn't
15:30.680 --> 15:36.110
so much we could combine this with that. It's just is
15:36.260 --> 15:40.000
this case, you know,
15:40.300 --> 15:45.160
in our neighborhood. I mean, is it really close and
15:45.170 --> 15:49.250
then that sort of being the main cut and then and
15:49.260 --> 15:52.730
then going on from there? I mean,
15:52.740 --> 15:56.000
I don't know if you agree, but I've sort of given up on trying to
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predict, obviously, combinations.
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Let the examiner come up with what they want.
16:05.160 --> 16:10.050
I mean, that's the way I think. Well, and having
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looked at having worked with the
16:13.120 --> 16:18.710
patent office doing the the
16:18.720 --> 16:22.250
search, is it even varies from examiner
16:22.750 --> 16:25.850
to examiner. Right. One examiner is
16:25.860 --> 16:29.570
going to combine references, and in his mind, it is very
16:30.070 --> 16:34.170
obvious another examiner comes along. But I don't see
16:34.670 --> 16:38.790
the motivation. So it is very subjective in
16:38.800 --> 16:40.830
the mind of the holder of the eye of the beholder.
16:41.760 --> 16:45.600
Right. I've had
16:45.610 --> 16:49.200
a case where the Pct the written opinion was
16:49.210 --> 16:53.290
clean. Right. So you think all that's great. And the US
16:53.320 --> 16:57.450
examiner says this and this and this. Right. That's interesting.
16:57.460 --> 17:00.740
Was the USB is in that contact?
17:00.750 --> 17:03.140
Two. Yes. Interesting.
17:03.980 --> 17:07.100
Yes. Anyway,
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subjectivity that's sort of what I give up on
17:11.670 --> 17:14.750
the obvious thing. Let it happen.
17:14.780 --> 17:18.260
I think where you find the ballpark references or I
17:18.270 --> 17:20.690
think, is a good strategy in the sense that if you find a whole bunch
17:20.700 --> 17:23.870
of ballpark references, then it allows you to find a whole bunch of
17:23.880 --> 17:27.650
different backup positions that could address all of those
17:27.660 --> 17:30.140
and even some that you didn't find. You know what I mean? And you can
17:30.150 --> 17:32.960
make those into the back. And so I think it at least gives you a
17:32.970 --> 17:37.160
really good leg up on what you might find for
17:37.170 --> 17:38.330
the initial absolutely.
17:41.210 --> 17:45.890
So from a defensive patent
17:45.900 --> 17:49.400
strategy, really, what businesses are looking to
17:49.410 --> 17:53.960
do is to protect themselves from other businesses. Larger corporations.
17:54.590 --> 17:59.840
Having worked for one, we were focused on having
17:59.850 --> 18:03.260
a large number of patents in the portfolio, and a lot of that
18:03.270 --> 18:06.500
has to do with being able to cross
18:06.510 --> 18:09.750
license or leverage using
18:10.250 --> 18:14.580
those patents during negotiations with other corporations.
18:14.590 --> 18:18.450
So it wasn't always quality, though.
18:18.460 --> 18:22.080
Quality is important, but it was really about having
18:22.580 --> 18:24.900
a large number of patents in your portfolio.
18:25.310 --> 18:28.320
On the other hand, startups,
18:28.650 --> 18:32.310
I believe, need to have a very different defensive
18:32.340 --> 18:36.570
patent strategy. They need to focus on quality over
18:36.690 --> 18:40.050
quantity, and they need to focus on what is their core
18:40.060 --> 18:43.740
invention and make sure that the specification is
18:44.040 --> 18:48.090
broad enough to cover many embodiments
18:48.100 --> 18:52.260
that they can use not
18:52.760 --> 18:56.310
only from an offensive side, but from a defensive side for protection.
18:57.270 --> 19:01.110
And then, of course, they should be doing a
19:01.610 --> 19:05.160
freedom to operate search, make sure an infringement search,
19:05.550 --> 19:09.750
and make sure that they are not violating any other enforced
19:09.760 --> 19:10.680
patents out there.
19:14.590 --> 19:15.590
Right.
19:17.320 --> 19:21.640
Startups just don't have the money that large
19:21.650 --> 19:25.600
corporations have or in house counsel. And those
19:25.660 --> 19:30.450
things, their patent
19:30.460 --> 19:34.080
strategies are a little different. I think startups,
19:34.090 --> 19:37.380
smaller businesses should be heavily focused on the offensive
19:37.440 --> 19:41.330
patent strategies versus the defense of patent strategies.
19:42.400 --> 19:45.700
So depending on the businesses and
19:46.200 --> 19:50.230
goals, there are various search types that can effectively steer business
19:50.730 --> 19:54.190
decisions in order to reach those end goals.
19:55.120 --> 19:58.390
So I want to briefly explain some search types
19:58.600 --> 20:02.500
and give some reasons why a business would want to invest in
20:02.510 --> 20:06.480
prior art searching. The first one is
20:06.630 --> 20:10.830
generally a patentability search. This is a perfect search
20:10.890 --> 20:14.700
strategy to determine novelty and nonobviousness
20:14.730 --> 20:18.150
during the initial stages of product planning
20:18.160 --> 20:22.590
and development. So you typically want to complete a patentability
20:22.600 --> 20:27.270
search prior to investing time and money and resources
20:27.780 --> 20:31.260
on product development. The focus is generally
20:31.270 --> 20:34.140
worldwide patents, published applications,
20:34.150 --> 20:37.920
any non patent literature, and it can have any
20:38.420 --> 20:43.730
priority date. It's just a good initial
20:43.740 --> 20:48.500
search for, especially for small startup companies. A validity
20:48.510 --> 20:52.130
or invalidity search is a search that's generally
20:52.140 --> 20:55.520
conducted after the issuance of a patent. In order to
20:55.530 --> 20:59.480
locate any prior art that exists prior
20:59.570 --> 21:03.200
to the priority date, you're looking to validate or
21:03.230 --> 21:05.810
invalidate the claims of that patent.
21:06.500 --> 21:10.910
Again, we are looking at worldwide patents, published applications
21:11.120 --> 21:14.780
in a nonpatent literature, having an earlier
21:14.840 --> 21:18.440
publication date or having an earlier or priority date.
21:18.450 --> 21:21.560
Then that reference that you want to either validate or
21:21.710 --> 21:25.790
invalidate. Businesses might be interested
21:25.800 --> 21:29.870
in running this search. If they
21:30.370 --> 21:34.040
want to assert their patent against someone,
21:34.050 --> 21:37.340
maybe they want to license their product and
21:37.350 --> 21:41.360
they want to make sure that their patent that they hold is actually
21:41.660 --> 21:43.370
a valid, strong patent.
21:44.260 --> 21:47.960
Another example when a business would want to run
21:47.970 --> 21:51.770
this type of search is if a company is coming after you and
21:52.000 --> 21:54.980
is trying to invalidate your claims,
21:55.860 --> 21:59.940
just make sure that you have a strong patent.
22:00.440 --> 22:04.410
Another type of search is an infringement or non
22:04.910 --> 22:08.490
infringement patent search. This investigates whether the
22:08.500 --> 22:12.840
claims of an enforceable, unexpired patent covers
22:13.140 --> 22:15.750
or reads on your product or service.
22:15.760 --> 22:20.170
If you are ready
22:20.180 --> 22:23.590
to go to market with your product, you want to make sure that you
22:23.600 --> 22:26.810
are not infringing on someone else's patent.
22:27.320 --> 22:30.920
Another reason would be whether or not
22:31.660 --> 22:35.560
another businesses product or services infringes your
22:35.620 --> 22:39.340
patent claims. Maybe you are looking to go and assert your
22:39.350 --> 22:42.830
patent against other companies out there.
22:42.840 --> 22:47.210
A freedom to operate or clearance search is
22:47.600 --> 22:51.390
a search that is going to let you know if you can freely
22:51.400 --> 22:55.410
produce, use, or sell your product or service in a particular
22:55.910 --> 22:59.280
country. This actually looks at different jurisdictions,
23:00.000 --> 23:03.630
and if you are going to Africa
23:03.690 --> 23:06.960
only, you want to make sure that there is no
23:08.080 --> 23:11.500
patents there that would not allow you to do
23:11.510 --> 23:15.230
so. So you can also look to
23:15.240 --> 23:19.750
see if the product or service that you are wanting
23:19.760 --> 23:23.170
to market is already out there in the public domain.
23:23.180 --> 23:26.980
Another search type is the state of the art search.
23:26.990 --> 23:31.660
There are times when you want to gather information
23:31.670 --> 23:35.410
on the trends of the particular technology you're in. What are
23:35.420 --> 23:39.370
the companies doing? Particular inventors you want to
23:40.030 --> 23:43.180
run these searches in order to assist your
23:43.330 --> 23:47.140
and your marketing groups. It gives you
23:47.620 --> 23:51.250
value. Maybe you want to have your business
23:51.260 --> 23:53.860
acquired. You want to know what's out there.
23:54.360 --> 23:57.880
Maybe you are interested in a joint venture with another
23:57.890 --> 24:01.920
company, and this helps determine
24:01.930 --> 24:05.670
what's out there. Another search type is
24:05.850 --> 24:09.440
a landscape search. These searches
24:09.450 --> 24:13.770
will help you ensure that you're making found
24:13.860 --> 24:17.040
business decisions. Good investments.
24:17.540 --> 24:21.360
It supports determining commercial or licensing value of
24:21.370 --> 24:24.930
your patent. It helps you understand the
24:24.940 --> 24:28.500
benefits or risks in entering a new technology area.
24:29.360 --> 24:32.870
A landscape search also will help
24:32.880 --> 24:36.890
provide competitive intelligence what
24:37.190 --> 24:41.420
a particular company is doing, what a particular inventors is doing.
24:41.960 --> 24:45.770
But it also identifies any white space that may
24:45.830 --> 24:49.940
be out there, especially in crowded fields like electrical
24:50.120 --> 24:53.630
and computer science. If you
24:53.640 --> 24:56.780
do a landscape search around a
24:56.790 --> 25:00.410
particular technology, it will show you what might
25:00.420 --> 25:03.770
be available for your business, then to enter.
25:04.240 --> 25:08.630
Okay, so some of my strategies
25:08.640 --> 25:11.420
that I've used over the years,
25:11.430 --> 25:15.200
this is kind of the tips to finding that needle in the haystack.
25:15.700 --> 25:19.790
So first and foremost, I always forward and backward search the
25:19.800 --> 25:23.930
examiner cited references, including the nonpatent
25:23.940 --> 25:27.950
literature. These searches are based on examiner searches.
25:28.280 --> 25:31.940
They are generally going to be the closest
25:31.950 --> 25:35.350
references found at the time.
25:35.360 --> 25:38.980
Of course, there are always references that hadn't
25:38.990 --> 25:44.460
printed or been published. But then
25:44.490 --> 25:48.420
each of those references provide further references to
25:48.430 --> 25:50.550
search on and to chase down.
25:50.810 --> 25:54.930
What I find during the forward
25:54.940 --> 25:58.950
and backward search is it provides keywords,
25:59.730 --> 26:03.360
synonyms, and equivalents that I may not have known about.
26:04.260 --> 26:08.100
So I just continue to add those to the list of
26:08.940 --> 26:12.620
keywords that I am going. And then I
26:12.950 --> 26:16.160
also glean the classifications,
26:16.660 --> 26:20.870
the class, and the sub classes from these references. I have
26:20.880 --> 26:24.770
found these to be first and foremost the best
26:25.280 --> 26:28.680
sources of information. And can
26:28.690 --> 26:32.250
you remind us what the forward and backward references are for
26:32.260 --> 26:35.540
an application? Yes, they are going to
26:35.550 --> 26:39.440
be on the front of a patent or patent application.
26:39.850 --> 26:43.880
Their cited references, the examiner
26:44.380 --> 26:46.820
sited references are always marked with an asterisk.
26:47.730 --> 26:51.880
The other side of references on the patents may
26:51.940 --> 26:55.970
be the company's from the company's
26:56.120 --> 27:01.530
disclosure, but the asterisk references
27:01.540 --> 27:06.330
are the ones that I always look at and
27:06.340 --> 27:09.660
I'll show you those. When I go through the
27:09.670 --> 27:13.540
patent search itself classes
27:13.600 --> 27:17.650
in the sub classes, we could go to the
27:17.660 --> 27:21.310
patent office entering keywords. It will bring up
27:22.280 --> 27:26.030
like the CPC code that for
27:26.040 --> 27:29.570
the keywords that you have entered. But what we
27:30.070 --> 27:33.830
really need to find out what you really need to focus on is
27:33.840 --> 27:37.970
the invention itself. Putting in a mobile device when the
27:37.980 --> 27:42.200
invention is a thermal runaway feature isn't
27:42.210 --> 27:45.710
going to bring you the correct classification. So it
27:45.720 --> 27:49.830
is quite cumbersome to actually kind of figure out the classes yourself.
27:49.840 --> 27:53.310
I found the easiest and quickest
27:53.320 --> 27:57.340
way is to again use those examiner cited references.
27:57.350 --> 28:00.070
The classifications that they used at the time,
28:00.250 --> 28:02.470
especially since they do change over time.
28:02.920 --> 28:06.490
And you could also perform a very quick keyword
28:06.500 --> 28:10.030
search and find those closed references
28:10.040 --> 28:13.120
and start noting the classifications that way.
28:13.560 --> 28:15.390
So let me ask you,
28:17.960 --> 28:21.680
the examiner references, what are you
28:21.690 --> 28:24.770
using it as the source? I mean,
28:26.000 --> 28:30.540
are these ballpark ballpark
28:30.550 --> 28:33.960
references you find, and then you drill down from there? Well,
28:34.460 --> 28:37.650
let's say I'm going to go over here and we'll go back
28:37.660 --> 28:41.100
to that. So on the search that I did for today,
28:42.630 --> 28:46.000
this reference here, Jen.
28:48.380 --> 28:50.930
Yeah. Is the examiner sited reference.
28:51.380 --> 28:54.620
Right. So if I were to
28:54.630 --> 28:58.040
invalidate this patent, for example,
28:58.050 --> 29:01.520
I would use these classifications up here.
29:05.500 --> 29:09.800
What you should do is because this was in 2015.
29:09.810 --> 29:13.550
You should take these classifications, go back to the PTO
29:13.560 --> 29:16.840
website, plug them in, make sure they're still
29:16.850 --> 29:19.780
valid because they do change.
29:22.570 --> 29:26.420
Okay. So the object of this search, then, is to look
29:26.430 --> 29:30.260
for weaknesses in this path. Is that right? That was the object of
29:30.270 --> 29:33.140
my search for today. All right.
29:34.610 --> 29:37.820
But if you were doing a patentability search,
29:37.850 --> 29:41.990
for example, and didn't have an examiner
29:42.490 --> 29:43.970
cited reference with keywords,
29:45.740 --> 29:49.670
you could perform this keyword search very quick
29:50.170 --> 29:53.820
keyword search to begin with, find those closed references,
29:54.420 --> 29:58.020
gather the classifications from
29:58.030 --> 30:01.950
those closed references, and then start working
30:01.960 --> 30:04.140
on searches within that class.
30:05.160 --> 30:08.380
In my mind of a
30:08.880 --> 30:12.880
comprehensive search, whether it be patentability
30:12.890 --> 30:16.500
to infringement, should include a
30:16.710 --> 30:20.310
review of all the references in the core class or sub class,
30:20.840 --> 30:23.460
so they need to be found.
30:23.820 --> 30:27.750
How you find them is is the challenge.
30:29.160 --> 30:32.700
And then that would only find the US ones. And then you would do other
30:32.710 --> 30:36.390
databases for I guess that would necessarily only find US ones that would find anything
30:36.400 --> 30:40.140
else that was cited that was foreign. But then you would do other foreign databases
30:40.150 --> 30:44.000
to find other references. So what
30:44.010 --> 30:47.370
is your workforce search tool,
30:47.870 --> 30:50.160
or do you use a handful? Do you have one?
30:50.720 --> 30:54.420
Yeah, I use a handful. I think
30:54.430 --> 30:57.690
it's important to use a lot of different databases.
30:58.140 --> 31:02.190
I generally start with Google patents in Google
31:02.690 --> 31:06.570
Scholar. I don't think that they capture all
31:06.580 --> 31:11.520
of the patents, but they are a great place to start to get classification
31:11.610 --> 31:15.390
numbers to gather keywords and synonyms.
31:16.200 --> 31:19.620
And then from there, I'll go on to
31:19.630 --> 31:23.640
free patents online. I will use the USPTO website.
31:23.700 --> 31:27.860
They also have a US
31:27.950 --> 31:31.820
to Pub West and Pub East. If you have access to a
31:32.320 --> 31:36.010
library that has the patent resource patent
31:36.020 --> 31:40.210
resources in it, foreign databases,
31:40.330 --> 31:42.810
space, space, Net,
31:43.160 --> 31:47.490
WIPO. You're going to search any type of Asian
31:47.580 --> 31:51.300
electrical references. You're going to want to go to the Japanese
31:51.880 --> 31:54.910
Patent Office. So each database,
31:55.680 --> 32:01.500
each database has their own unique search tools.
32:01.510 --> 32:05.640
They use boolean operators differently. They might use wildcards
32:05.650 --> 32:09.070
differently. They're fairly easy to
32:09.600 --> 32:13.750
understand. You just have to kind of remember which database
32:13.760 --> 32:17.260
you're in, but I always use a variety.
32:17.600 --> 32:20.930
Do you say the base tell you how they use those different ones,
32:20.940 --> 32:24.620
or is that something you kind of learned over time? Yeah. They all have information
32:26.130 --> 32:30.590
boxes that you can look up. And and
32:30.620 --> 32:34.010
remember, I need to use a star, an Asterisk,
32:34.190 --> 32:38.240
or I need to use a dollar sign for Truncation.
32:38.250 --> 32:40.250
So they're all a little bit differently,
32:42.780 --> 32:45.880
but fairly the same, fairly easy.
32:46.320 --> 32:49.440
So really, when you start your search,
32:51.090 --> 32:54.640
along with using the different databases,
32:54.700 --> 32:58.360
you need to start your search by thinking,
32:58.370 --> 33:01.570
what is the structure, the function? What is it?
33:01.860 --> 33:05.040
You also should search on what does
33:05.050 --> 33:08.520
it do? Search the end result or the problem
33:08.530 --> 33:14.010
solved, and then you can combine the two of them for
33:14.130 --> 33:18.000
another round of searching. And I generally
33:18.010 --> 33:21.780
start with the structure of the function. What it is exactly.
33:21.900 --> 33:26.070
I start broad and just continue
33:26.370 --> 33:30.510
narrowing it with adding keywords or boolean
33:30.540 --> 33:34.230
operators. I rearrange the words. Sometimes I'll put
33:34.240 --> 33:38.130
the first words at the end, the end words at the beginning.
33:38.570 --> 33:42.390
It does sometimes bring up different
33:42.540 --> 33:46.290
results. And then I sort by relevancy.
33:46.800 --> 33:50.160
So a lot of these searches you might get,
33:51.400 --> 33:54.820
you know, 200,000 references. You kind
33:54.830 --> 33:58.395
of search by relevancy and go through the first 20 to
33:58.410 --> 34:01.720
30 or so references and see if you're hitting
34:01.730 --> 34:02.380
the right target.
34:04.450 --> 34:08.210
Another way that you look
34:08.220 --> 34:12.060
at it is you start very narrow, and then you start taking
34:12.070 --> 34:16.860
out keywords and start broadening
34:16.870 --> 34:20.920
it as you go and finding references that
34:20.930 --> 34:23.800
way, you can search the structure,
34:24.870 --> 34:28.420
but it may not be the same.
34:28.430 --> 34:32.700
It may not have the same end result as another
34:32.710 --> 34:36.090
similar structure. So you kind of want to
34:36.100 --> 34:40.600
come at the search in very different ways and
34:41.500 --> 34:44.920
see what references you're bringing up. And then some of the
34:44.930 --> 34:48.730
other tips, mechanical applications are
34:48.740 --> 34:51.520
really hard. They use very generic terminology.
34:51.970 --> 34:53.800
I always look at the drawing first,
34:55.790 --> 35:00.090
electrical. It's a very crowded technology
35:00.570 --> 35:03.870
classification. Searching is very difficult and electrical.
35:04.620 --> 35:08.700
So I tend to search the Asian databases,
35:08.970 --> 35:12.690
and then that's where the site any cited references
35:13.560 --> 35:16.560
really help. Business methods.
35:16.570 --> 35:20.850
Again, very generic terminology. They're not really
35:21.350 --> 35:25.050
represented in the drawings very well. So I tend to
35:25.060 --> 35:29.060
search the problem that is solved. What's the
35:29.070 --> 35:32.540
problem? And then I kind of back into it that
35:32.570 --> 35:35.790
way. Software again,
35:35.800 --> 35:41.970
kind of the same as a business method. I kind of back into from
35:41.980 --> 35:45.700
the problem solved into the invention and
35:45.710 --> 35:49.990
chemical and biotech. Well, I'm going to refer it to a skilled practitioner
35:50.000 --> 35:53.710
because that's not my strong suit.
35:54.210 --> 35:57.550
You have to understand what the brand names are, the compounds.
35:57.760 --> 36:01.160
And I think it really requires experience
36:01.170 --> 36:04.730
in that technology itself. So with regard to problem solve,
36:04.820 --> 36:08.780
is that a field? Can you search? I know Japanese
36:09.280 --> 36:13.520
patents or Korea in the Abject, they'll say the
36:13.530 --> 36:16.610
problem is that a searchable field?
36:17.270 --> 36:22.760
No, it would just be again, in your
36:23.260 --> 36:26.150
keyword searching on to the actual problem.
36:27.290 --> 36:30.960
Right. It would be a good
36:30.970 --> 36:36.630
feel, seen a good searchable feel I
36:36.640 --> 36:39.870
think patterns should have honestly actually thinking about it.
36:39.880 --> 36:43.830
Now, I feel like given how the technical field piece should
36:43.840 --> 36:47.310
actually be, like, problem to be solved or something, you could
36:47.320 --> 36:50.910
layer in multiple problems, right. In varying press of it. But I think
36:50.920 --> 36:55.230
that could be a really interesting field to have, like, required in the patent
36:55.730 --> 36:59.730
from Couching. The invention kind of is in the background,
36:59.790 --> 37:03.480
but making people really say this is the problem I set out to
37:03.490 --> 37:06.840
solve here. He's a slew of problems that I set out to solve
37:07.680 --> 37:11.170
right here. It'd be
37:11.180 --> 37:16.920
easier to classify as well. So overall,
37:17.190 --> 37:20.520
I think that an agent knows
37:20.580 --> 37:23.970
the keywords. They can look up the classifications.
37:24.000 --> 37:27.580
They can really run through the mechanics of
37:27.590 --> 37:31.480
the search, but without them having an understanding
37:31.490 --> 37:35.650
of the overall context of the key words in
37:35.660 --> 37:37.000
the description.
37:39.060 --> 37:42.130
Sometimes a search is meaningless.
37:42.140 --> 37:46.420
So just
37:46.480 --> 37:50.140
as Ashley was saying earlier, a reference
37:50.200 --> 37:54.250
could have all of the key words. However, they could be teaching away
37:54.280 --> 37:58.090
from that invention that you are actually looking for.
37:58.100 --> 38:01.600
So without understanding the context,
38:01.610 --> 38:05.140
I don't know how you could pull up meaningful
38:05.350 --> 38:09.360
references. And I think
38:09.370 --> 38:12.860
this is where human human brain comes
38:12.870 --> 38:16.610
in to play a lot more than an automated search
38:17.110 --> 38:20.700
tool. So for today,
38:20.710 --> 38:24.060
I actually came across a patent that I thought I
38:24.560 --> 38:29.120
would kind of step through and show you what
38:29.130 --> 38:32.660
I do. In this case, it just happens
38:32.670 --> 38:35.860
to be an Apple patent, and these
38:35.870 --> 38:39.790
inventors, I don't have anything against them. I don't know how I picked this
38:40.000 --> 38:43.510
in this actual patent, but I just
38:43.520 --> 38:47.200
thought it was easy enough for everyone to be able to understand despite its
38:47.210 --> 38:54.410
electrical. So what I do for
38:54.910 --> 38:58.070
this search, we're going to invalidate claim one.
38:58.400 --> 39:02.360
So for example, Apple may be asserting this
39:02.860 --> 39:06.590
patent against, for example, Nokia or Samsung,
39:06.710 --> 39:10.840
and a Nokia or
39:10.850 --> 39:14.260
a Samsung would want to invalidate this patent.
39:14.380 --> 39:17.050
That would probably be the first line of defense.
39:18.860 --> 39:22.130
So I note the priority
39:22.630 --> 39:26.460
date. In this case, we're going to have to find references prior to January
39:26.470 --> 39:30.540
16 2013. It is
39:30.660 --> 39:34.500
a continuation. I note the classifications,
39:34.830 --> 39:38.430
and I note the examiner cited references. In this
39:38.440 --> 39:42.270
case, it's in. They do have a couple other references
39:42.300 --> 39:45.600
on the second page that the examiner has cited.
39:48.460 --> 39:52.370
Now, since this is a continuation
39:52.870 --> 39:56.360
of another allowed patent, I would think it would be pretty
39:56.690 --> 40:00.590
difficult to find references when
40:00.600 --> 40:04.250
I went to Jim, this was the first examiner cited
40:04.260 --> 40:08.000
reference. And you just make that point in here what
40:08.500 --> 40:11.920
you just said about it being a continuation or
40:11.930 --> 40:16.700
something. Yeah. What was your point with
40:16.730 --> 40:20.990
this being a continuation? References may be difficult
40:21.000 --> 40:24.570
to find considering this has now gone through at least two
40:25.070 --> 40:28.440
iterations of searches. Examiners have allowed the
40:28.450 --> 40:32.620
first, the parent, and now they've allowed the second. I see.
40:33.180 --> 40:36.910
Yes. So meaning that in theory, the draft or knew
40:37.090 --> 40:39.310
the reference as well and was smart enough to,
40:39.860 --> 40:43.340
in theory, draft around them or do so better.
40:44.030 --> 40:47.090
And in this case, when I looked at the parent,
40:47.580 --> 40:50.790
this second Apple
40:51.340 --> 40:55.210
patent, the claim one is broader than
40:55.420 --> 40:59.290
the parent claim, so they know it's out there.
40:59.940 --> 41:03.420
So the first thing I do
41:03.430 --> 41:06.750
is review those examiners sited references,
41:08.300 --> 41:11.900
and in fact, in well, to give
41:11.910 --> 41:15.590
you a brief overview of what the actual patent is,
41:16.090 --> 41:20.480
it is a mobile device that has a sensor temperature
41:20.510 --> 41:24.290
sensor inside. It monitors its internal
41:24.440 --> 41:27.680
temperature. When it gets above a threshold,
41:28.120 --> 41:35.060
a power cap for the transmission power
41:35.070 --> 41:38.660
is reduced so that the device
41:38.670 --> 41:42.440
itself doesn't overheat. The second step is,
41:42.450 --> 41:45.890
however, if the mobile device is going
41:45.900 --> 41:49.010
to be sending a critical message to a base station,
41:49.020 --> 41:52.620
it will allow the the
41:52.650 --> 41:56.100
transmission power to increase or just
41:56.110 --> 41:59.410
that period of time. So that's kind of
41:59.420 --> 42:02.430
what we're looking to invalidate. And I go,
42:02.850 --> 42:06.400
when I look at Jen, Jin seems pretty close.
42:06.580 --> 42:10.120
It's also a mobile device that detects an internal temperature.
42:10.500 --> 42:14.700
It operating in a limited communication state
42:15.240 --> 42:19.140
for which only emergency communication is permitted.
42:19.150 --> 42:23.170
So I I'm not understanding
42:23.180 --> 42:27.440
then why Jen didn't invalidate
42:27.450 --> 42:31.590
this Apple patent to begin with. So from
42:32.090 --> 42:35.610
there, I will go to the file wrapper. I do
42:35.620 --> 42:39.030
use the information in the file wrapper quite
42:39.040 --> 42:42.970
often. In this
42:43.470 --> 42:46.990
case, Apple received the final office section,
42:47.320 --> 42:50.770
and they appealed. In their appeal
42:50.890 --> 42:54.140
brief, they modified
42:54.150 --> 42:58.700
their plans to overcome the Gen reference and
42:58.710 --> 43:03.660
highlighted the sections that they
43:03.670 --> 43:07.470
believe overcome. June. So they stress that
43:08.730 --> 43:12.900
when they cap the power, it is a non zero maximum
43:12.960 --> 43:16.200
transmission power, and then they release the power
43:16.230 --> 43:19.720
cap when the mobile device is
43:19.840 --> 43:21.880
transmitting a critical message.
43:22.580 --> 43:26.420
So these are the examiners reasons
43:26.430 --> 43:29.310
for allowance. And from there,
43:29.320 --> 43:33.030
I know that I really need to focus on
43:33.040 --> 43:36.660
why the examiner actually allowed the patent.
43:36.880 --> 43:40.980
And when I when
43:40.990 --> 43:45.460
I set up my claim map chart, I highlight
43:45.470 --> 43:48.850
those sections. We pretty much know that
43:48.860 --> 43:52.570
Jin covers the main portion of claim one.
43:53.730 --> 43:57.190
Given the examiners reasons for allowance,
43:57.200 --> 44:00.880
I highlight those and then really focus
44:00.890 --> 44:03.680
in on just those aspects.
44:03.970 --> 44:07.730
In waiting, Shelly, is it valid or is
44:07.740 --> 44:10.820
it Invalid? Well,
44:10.830 --> 44:13.970
it didn't take me too long to in my mind,
44:13.980 --> 44:14.900
invalidate it.
44:17.630 --> 44:21.470
So when I start my search, I again note
44:21.590 --> 44:25.310
all of the critical information. I start
44:25.400 --> 44:29.640
writing down my keywords. I always just put them in boolean
44:30.000 --> 44:33.330
form because that's the way I'm going to use them. I'm going to
44:33.340 --> 44:35.340
look for a mobile or a phone or a cell phone.
44:37.790 --> 44:41.490
What we need to search
44:42.080 --> 44:45.800
would easily pull up mobile
44:45.810 --> 44:49.790
devices that have a temperature sensor and
44:49.800 --> 44:52.520
are able to sense the ambient temperature.
44:52.530 --> 44:56.630
But what we need to make sure we look for is the
44:56.640 --> 45:01.170
mobile device that is taking a temperature of it temperature
45:01.180 --> 45:04.590
and then throttling its transmission power.
45:05.560 --> 45:09.560
And I will go back as I iterate
45:09.570 --> 45:13.950
the search. I will go back and update these
45:14.010 --> 45:17.880
keywords so that my future
45:17.890 --> 45:21.600
iterations all include all of
45:21.610 --> 45:25.200
the keywords. For example, in this
45:25.700 --> 45:29.160
case I had attenuate control,
45:29.660 --> 45:34.030
lower cap or reduce. I didn't think about the word throttle, so I
45:34.530 --> 45:38.290
needed to go back and add throttle to the iteration once
45:38.300 --> 45:42.000
I found that keyword in a
45:42.060 --> 45:45.750
previous search. So again, I will do
45:45.760 --> 45:49.230
forward and backward searching on the parents
45:49.770 --> 45:51.990
and all of the examiner sited references,
45:52.730 --> 45:56.670
and I will go through each of those and expand
45:56.700 --> 46:00.280
on them. And then when
46:00.290 --> 46:03.910
I start setting up, I happen to do all of this in Google
46:03.920 --> 46:08.380
patents. So when I set up the
46:08.390 --> 46:12.770
initial searching, it's going to be just very broad keywords.
46:13.270 --> 46:16.910
We're looking for any references before
46:16.920 --> 46:20.260
the priority date, and I will just
46:20.270 --> 46:23.750
iterate with adding
46:23.760 --> 46:27.080
more keywords. At some point,
46:27.290 --> 46:31.130
I'm going to add the boolean operators.
46:31.630 --> 46:35.030
In this case, it's going to be transmission near power.
46:37.510 --> 46:41.030
We also could have the
46:41.040 --> 46:44.540
mobile device near temperature.
46:47.710 --> 46:51.150
What else do I have since
46:52.380 --> 46:57.430
we need to find a critical message
46:57.440 --> 47:01.330
in there? It's talking to the base station. We may put that in the same
47:01.360 --> 47:05.360
paragraph. So I will just continue to iterate
47:05.370 --> 47:09.020
and go back and forth and try to have
47:09.520 --> 47:13.000
a plan with I'm going
47:13.010 --> 47:16.050
to go from broad to narrow here.
47:16.550 --> 47:19.650
I'm going to start with the actual
47:20.480 --> 47:23.870
function that the mobile devices
47:23.880 --> 47:27.740
is providing. It's actually attenuating the
47:27.750 --> 47:31.240
transmit power, and then it
47:31.560 --> 47:35.500
attenuates the transmit power when there's,
47:36.000 --> 47:39.820
the temperature exceeds a threshold. And so I
47:39.830 --> 47:43.600
will start going in that direction as
47:43.610 --> 47:47.360
well. And then at some point I might
47:47.370 --> 47:51.120
add in the classification. And in this
47:51.130 --> 47:55.020
case I added the classifications in went through the first 20
47:55.080 --> 47:58.870
or so references, found this Japanese reference that
47:58.880 --> 48:02.530
was very close. And when I looked at the US
48:02.650 --> 48:05.900
equivalent, found this anion.
48:06.740 --> 48:10.610
So this is a Qualcom patent. The priority
48:10.640 --> 48:13.730
date is before Apple date.
48:14.200 --> 48:18.160
How I basically do is I review the title.
48:18.520 --> 48:21.820
I review the abstract. If they are close,
48:22.120 --> 48:25.840
I'll go into the description, note the
48:25.850 --> 48:28.810
classifications and go from there.
48:28.840 --> 48:29.860
In this case,
48:32.370 --> 48:35.720
this one to me was was
48:35.870 --> 48:39.890
a two reference, so I would
48:39.900 --> 48:44.090
go back to my reference table and map it for
48:44.100 --> 48:48.030
the client. So this
48:48.040 --> 48:50.160
is the claim one that we wanted to invalidate.
48:51.690 --> 48:55.950
And where in this
48:55.960 --> 48:59.590
reference, this Qualcom reference, I found
48:59.600 --> 49:02.980
the location and the segment that
49:02.990 --> 49:06.100
invalidates the claim one and its elements.
49:06.520 --> 49:10.150
So Qualcom does talk about
49:10.160 --> 49:14.820
the Wan device that throttles its transmission
49:14.880 --> 49:18.480
power based on its internal
49:18.490 --> 49:22.340
temperature. And I will just map through
49:22.840 --> 49:28.360
each element and the rate highlighted
49:28.860 --> 49:32.740
sections here or the examiner reasons
49:33.240 --> 49:37.030
for allowance. And then
49:37.530 --> 49:41.620
over on the Qualcom side, of course, is the
49:41.630 --> 49:45.700
verbiage that talks to that piece of the
49:46.490 --> 49:50.040
reasons for allowance. So it took me
49:50.050 --> 49:52.590
about an hour and a half to find it.
49:53.760 --> 49:56.610
If this were an actual client search,
49:57.140 --> 50:00.530
you want it to be more exhaustive and more
50:00.620 --> 50:04.200
complete. I would then take this
50:06.360 --> 50:09.800
Qualcom reference. I would do again forward
50:09.810 --> 50:13.400
and backward searching on it. I would add any
50:13.460 --> 50:16.430
classification that might have been missing.
50:16.440 --> 50:19.860
I would add in other
50:19.870 --> 50:23.430
synonyms, such as throttle, and I would
50:23.440 --> 50:26.940
do the search again. So typically for an
50:26.950 --> 50:30.450
invalidation or an infringement search, I try to
50:30.460 --> 50:34.470
find at least one two reference and
50:34.480 --> 50:38.820
then several one three references to allow the
50:39.000 --> 50:42.450
law firm or whoever is wanting
50:42.460 --> 50:45.630
to invalidate this patent the opportunity to combine
50:46.050 --> 50:49.910
for obviousness how they see fit. Awesome. So to
50:49.920 --> 50:52.760
apologize to Apple. No, no,
50:53.750 --> 50:57.140
sorry, Apple. I said nothing
50:57.150 --> 50:59.690
against them, but I do make great products,
50:59.900 --> 51:03.050
although I have I still have my Apple phone.
51:06.480 --> 51:10.410
So of course, the caveats
51:10.580 --> 51:14.160
searching, as you mentioned, David, searching is very
51:14.190 --> 51:18.150
subjective. Patent examiner are very subjective,
51:18.680 --> 51:22.950
and I think it
51:23.190 --> 51:27.300
makes it very difficult. But the
51:28.290 --> 51:32.010
more you understand the what you're
51:32.020 --> 51:34.830
looking for, the easier it is. Right.
51:35.850 --> 51:39.485
And I think that it with over 11
51:39.495 --> 51:42.710
million patents and applications, plus all of
51:42.720 --> 51:46.550
the non patent literature out there. A comprehensive
51:46.560 --> 51:50.570
and thorough search obviously requires working closely with the clients
51:50.840 --> 51:53.690
in order to perform a very focused examination.
51:56.040 --> 51:59.680
And then, of course, any trade secrets that aren't published you
51:59.690 --> 52:03.410
aren't going to be able to find. I think I think that's an
52:03.420 --> 52:07.490
interesting question. I think we've actually gotten a lot is that clients wonder
52:07.580 --> 52:11.270
whether if they have a trade secret and then because trade
52:11.280 --> 52:14.600
secrets don't protect you from somebody independently driving your
52:14.610 --> 52:18.080
trade secret. Right. So then what if you have a trade secret starting
52:18.090 --> 52:21.380
in 2000, and then somebody creates themselves,
52:21.390 --> 52:24.965
like, independently derives it, comes about it, whatever in 2005,
52:24.975 --> 52:28.560
and they seek a patent on it? And then are you
52:28.590 --> 52:33.060
prevented from practicing your trade
52:33.070 --> 52:36.150
secret because you never patented it?
52:36.160 --> 52:40.170
And I think what we've kind of discerned from reviewing
52:40.180 --> 52:44.730
everything, and the other day you wouldn't be able to show us through
52:44.740 --> 52:48.630
confidential documents. Right. Use of that trade got well before the patent filing date,
52:48.640 --> 52:52.200
and honest only that would come to light if for whatever reason, that company that
52:52.210 --> 52:56.070
patented it came across you and had reason to believe that you were using the
52:56.080 --> 52:59.490
method, and then they would have to try to see patent for event.
52:59.500 --> 53:02.130
And you have to prove that you were using it five years earlier,
53:02.640 --> 53:05.370
that they should ever have gotten a patent in the first place. That is a
53:05.870 --> 53:09.060
question that people routinely, but that's true. You're not going to find any
53:09.070 --> 53:11.640
of those in a search. You're not going to find or even,
53:12.360 --> 53:15.960
you know, patents that are patent applications that are subject to non
53:15.970 --> 53:18.240
publication request. You're not going to find those either.
53:20.160 --> 53:23.740
And even that is still 18 months
53:23.750 --> 53:30.040
before they're published. Right. I think
53:30.050 --> 53:33.610
just being able to come at it in many
53:33.700 --> 53:36.790
different directions is the key to finding,
53:38.600 --> 53:40.920
defining relevant art,
53:42.660 --> 53:46.080
being able to come at it from the invention itself,
53:46.090 --> 53:50.040
from the problem that solved, from the
53:50.880 --> 53:54.890
actual results, you kind of come at
53:54.920 --> 53:59.120
it from different angles to find what you're looking
53:59.130 --> 53:59.270
for,
54:01.680 --> 54:05.540
right? Yeah, for sure. I think it's Val
54:05.570 --> 54:06.410
and Bella point.
54:08.410 --> 54:11.720
And then, of course, you know, it comes down to time.
54:11.730 --> 54:14.120
If you had all the time in the world, you might be able to find
54:14.130 --> 54:18.470
a lot more. But there's a trade off time and time
54:18.480 --> 54:22.090
in finding what you need within that time, time and budget.
54:22.350 --> 54:25.180
Right. So did you work?
54:25.500 --> 54:28.690
Were you dedicated the patent searching for a while?
54:28.700 --> 54:30.480
Was that your job title?
54:31.760 --> 54:35.010
How did you get so good at
54:35.510 --> 54:35.790
all this?
54:37.850 --> 54:40.980
I searched of the
54:40.990 --> 54:46.180
time for eight years. Really? For who
54:46.190 --> 54:49.690
was? Yeah. It was a
54:49.720 --> 54:52.480
Cardinal patent search. Cardinal.
54:53.740 --> 54:58.190
I see. Yeah. So I think that you
54:58.690 --> 55:02.150
do become more familiar with searching. Obviously, the more you
55:02.160 --> 55:04.670
do it, you know what you're looking for?
55:05.110 --> 55:09.130
I am able to go through references
55:09.160 --> 55:12.640
very quickly, just kind of
55:12.650 --> 55:16.480
looking at like I was saying, before. I look at the drawings,
55:16.490 --> 55:19.570
I look at the title, I look at the abstract, I look at the claims.
55:19.870 --> 55:23.800
I then go and look at the description and
55:23.810 --> 55:27.830
find those keywords that highlighted keywords and
55:27.840 --> 55:31.070
then understand the context of those keywords.
55:32.900 --> 55:36.530
I think it kind of ranges. I think you can probably look
55:36.540 --> 55:40.490
at a reference within 30 seconds now, whether or not you discard
55:40.500 --> 55:43.850
it or keep it. If you
55:43.860 --> 55:47.600
feel it's close, you might want to look at it a little more.
55:47.610 --> 55:51.320
Now you're at, like maybe three to five minutes looking at a patent
55:51.330 --> 55:55.560
application or a reference to see
55:55.570 --> 55:56.310
if it's a keeper.
55:58.000 --> 56:01.330
But obviously you are looking at thousands
56:01.340 --> 56:04.600
and thousands of references for even
56:04.610 --> 56:07.960
a patentability search, let alone a landscape search or
56:08.260 --> 56:11.710
some of the more involved searches. So you tend to
56:13.880 --> 56:17.220
learn how to skim and really kind of
56:17.230 --> 56:20.190
get the context quickly.
56:20.200 --> 56:24.290
In fact, when I was kind of
56:24.790 --> 56:27.500
walked away from hat and searching and I tried to read a book, I had
56:27.510 --> 56:30.620
a very difficult time. I had to teach myself to
56:30.630 --> 56:34.010
slow down a little bit and actually read it and enjoy it.
56:35.510 --> 56:39.050
What's this novel concept of reading every word right
56:41.840 --> 56:43.460
now we throw you back into it.
56:48.890 --> 56:52.100
Well, I do find it very interesting. It's like a challenge. Right?
56:53.360 --> 56:57.290
I find it. It's like this goal
56:57.790 --> 57:00.470
I have. Alright. I'm going to invalidate this Apple patent.
57:00.970 --> 57:03.680
I'm going to do it. I'm going to work until I find it.
57:04.540 --> 57:06.230
Sure, it's out there.
57:08.230 --> 57:11.540
All that said though, too. I think the other interesting thing
57:12.040 --> 57:15.670
is that I took cleans a lot of times is that I believe
57:15.680 --> 57:19.570
you can almost always get a patent. But what
57:19.580 --> 57:22.750
is the value of the patent and
57:23.250 --> 57:26.840
that's in proportion to the breath? Right. If you
57:26.850 --> 57:28.910
want a crazy broad patent,
57:29.780 --> 57:33.440
that's going to have determine the technology, the landscape,
57:33.860 --> 57:37.730
whatever. But if you're really just looking
57:37.740 --> 57:41.510
for a patent because some investor told you to and they're already
57:41.520 --> 57:44.990
giving you dogs of money, then maybe something more narrow to
57:45.000 --> 57:48.800
get it through quickly is what you want. But there's usually
57:48.810 --> 57:52.340
a patent in there somewhere. It's just how
57:52.430 --> 57:56.510
much are you willing to spend to get that crazy broad one versus how much
57:56.520 --> 57:59.720
are you willing to leave on the table to get a narrower one?
57:59.750 --> 58:00.380
One?
58:03.850 --> 58:07.910
How typically do you engage
58:07.920 --> 58:11.730
the client during this process during
58:11.740 --> 58:12.330
the process?
58:16.400 --> 58:18.720
Typically not often,
58:20.220 --> 58:23.640
certainly not going through it unless you run
58:23.670 --> 58:27.150
into a situation where you're not understanding it,
58:27.210 --> 58:31.260
maybe a technical concept and want
58:31.270 --> 58:34.650
to explain a lot of it
58:34.680 --> 58:38.790
can be done without the
58:38.800 --> 58:42.520
client back and forth, as opposed to patent drafting.
58:42.530 --> 58:45.910
Right. You want to get
58:45.920 --> 58:49.110
everything when you're drafting patent
58:49.120 --> 58:52.740
applications, but as far as searching, you generally have
58:52.750 --> 58:56.520
it go unless it's a patentability search. In that case, you probably
58:56.530 --> 59:00.120
do want to have some back and forth to completely understand
59:00.130 --> 59:03.660
what's out there. Right. I think sometimes what we've
59:03.670 --> 59:07.170
done, too, I know, is kind of in that initial download stage,
59:07.620 --> 59:11.130
we have sometimes not always,
59:11.140 --> 59:14.790
but a lot of times clients know already have a relatively good
59:14.800 --> 59:18.930
idea about at least companies in the space that are
59:18.940 --> 59:22.500
big players. And even in some instances,
59:22.560 --> 59:26.770
had almost like a technology summary document
59:26.780 --> 59:30.520
that highlights any companies or inventors or
59:30.530 --> 59:33.760
whatever that they're already aware of. And then kind of
59:33.770 --> 59:37.060
like a summary of the technology. And sometimes we've done that to make
59:37.070 --> 59:40.600
sure that everybody is on the same page before embarking on a search.
59:41.680 --> 59:45.190
But that also depends on the technology and how
59:45.200 --> 59:48.940
complicated what kind of search you're doing, free them
59:48.950 --> 59:52.310
to operate. Probably you can answer this show,
59:52.320 --> 59:56.510
but it's probably one of the more straightforward ones in the sense that or invalidity
59:56.520 --> 59:59.600
in that the claims are the claims. Right. You're searching.
1:00:00.950 --> 1:00:04.250
I mean, there's interpretation of what those claim term means,
1:00:04.520 --> 1:00:08.420
but in terms of what you're searching, it is the claims. I got
1:00:08.430 --> 1:00:12.110
16 variations or various embodiments of
1:00:12.120 --> 1:00:15.570
those claims. It's the claims. But as
1:00:15.580 --> 1:00:18.600
you mentioned, patentability starts to get into. Well, you could do it this way,
1:00:18.610 --> 1:00:21.510
or you could do it that way. Or we could have this. We don't need
1:00:21.520 --> 1:00:24.060
to have that. Or it could look like this, but I wouldn't have to look
1:00:24.070 --> 1:00:28.100
like that. So when you're working with a client,
1:00:28.110 --> 1:00:31.490
Ashley, do you
1:00:31.940 --> 1:00:35.210
offer a search? You talk about searching to some
1:00:35.220 --> 1:00:38.840
clients, say, skip the search. How does those.
1:00:39.200 --> 1:00:42.770
How do those conversations go? Yeah. I think
1:00:42.780 --> 1:00:46.220
we almost always try to include, like, an hour or
1:00:46.230 --> 1:00:49.490
two searching when we do new new drafting,
1:00:49.500 --> 1:00:53.120
just because it helps us couch the application with respect to
1:00:53.130 --> 1:00:56.660
the art a little bit. For some of the clients that we work with,
1:00:56.670 --> 1:00:59.750
especially with some of the business accelerators and incubators,
1:01:00.250 --> 1:01:03.620
they have access to free tools, like not free tools. I guess
1:01:03.770 --> 1:01:07.190
they have access to tools that they incubate or accelerated pays for,
1:01:07.200 --> 1:01:10.820
like an Ography or equivalent. And sometimes
1:01:10.830 --> 1:01:13.940
we even have companies that come to us with the whole list
1:01:13.950 --> 1:01:17.580
of references. Here's 30 references that, you know,
1:01:17.640 --> 1:01:21.180
as I plotted along through an Ography, these are these are
1:01:21.190 --> 1:01:24.540
the references that I found out already presents a pretty good idea of what's out
1:01:24.550 --> 1:01:28.370
there. But then for other clients, you know, it's just it's
1:01:28.380 --> 1:01:31.580
enough of a crowded space, or they're really concerned about freedom to
1:01:31.590 --> 1:01:35.000
operate or they're undergoing diligence. And so for some
1:01:35.010 --> 1:01:38.630
clients, it's more of like, again, that trade off of we want some
1:01:38.640 --> 1:01:41.720
searching done to kind of understand what's out there, but we also don't
1:01:41.730 --> 1:01:45.260
want to be crazy and spend God of money. So I think it's
1:01:45.270 --> 1:01:48.440
kind of all sorts. And then there's even a few clients that we have that
1:01:48.450 --> 1:01:52.220
are in very busy spaces where they actually have routine
1:01:52.820 --> 1:01:56.120
monitoring. Every month, we get a huge download of references
1:01:56.750 --> 1:02:00.530
of various inventors or companies kind of
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tracking their publication record over time. And I review,
1:02:04.280 --> 1:02:07.400
for instance, we have three clients right now that we do
1:02:07.410 --> 1:02:11.570
this for, and we get about 400 references every
1:02:11.750 --> 1:02:15.770
month that I triage and try to find the needles
1:02:15.780 --> 1:02:19.850
in the haystack in those references. Right. Is I end up finding 20
1:02:19.910 --> 1:02:23.630
or 30 for one client, maybe one for another, and then maybe
1:02:24.140 --> 1:02:27.680
two for another. So just like,
1:02:27.740 --> 1:02:31.250
oh, this company is now moving into our space. So this company is moving
1:02:31.260 --> 1:02:34.820
further away from our space. This inventor moved companies and now might be doing
1:02:34.830 --> 1:02:38.450
more of their stuff or things like that, because you can see sometimes inventors
1:02:38.460 --> 1:02:41.900
are kind of incestuous, right? They kind of stick in the same types of
1:02:41.910 --> 1:02:44.940
companies, same deals. That's interesting.
1:02:44.950 --> 1:02:48.300
A whole other world. But I think it definitely helps
1:02:48.810 --> 1:02:52.440
our clients when we've done it to either help them. We have
1:02:52.450 --> 1:02:55.890
a few clients that come in with these extremely high level ideas, and you're
1:02:55.900 --> 1:02:59.630
like, that's great. But I can't effectively draft
1:02:59.900 --> 1:03:03.800
if you don't drill down more, because here's ten
1:03:03.810 --> 1:03:07.430
references that on this high level talk about your innovation. So if you
1:03:07.440 --> 1:03:10.850
want me to draft this and to maximize the quality
1:03:10.860 --> 1:03:14.060
of the application, it's good forcing function to
1:03:14.070 --> 1:03:17.390
get the client to drill down and say, well, what do you really want to
1:03:17.400 --> 1:03:20.510
protect in this? You can't just protect this, like, lofty idea has
1:03:20.520 --> 1:03:23.840
to be something more specific in this space,
1:03:23.850 --> 1:03:27.560
and it helps them focus sometimes. Right.
1:03:27.740 --> 1:03:31.480
I meanthat's something that I mean,
1:03:31.490 --> 1:03:34.720
I think one of the main values of searching is that it helps
1:03:34.730 --> 1:03:38.380
you track the claim. The sort of iteration of this
1:03:38.390 --> 1:03:41.890
is what we want to claim. And then you find this and you find that,
1:03:41.920 --> 1:03:45.460
and you realize you need to narrow or you need to add
1:03:45.470 --> 1:03:46.150
a dependent.
1:03:49.500 --> 1:03:52.150
Anyway, it's interesting.
1:03:52.970 --> 1:03:57.720
Interesting area I used I mentioned
1:03:57.730 --> 1:04:01.830
before. I use the a site called a claim
1:04:02.610 --> 1:04:05.040
with two S's a claim,
1:04:05.070 --> 1:04:08.550
and they're
1:04:08.560 --> 1:04:11.730
pretty good. They're a little quirky,
1:04:13.190 --> 1:04:17.640
but they have a data extraction
1:04:18.140 --> 1:04:22.320
feature so you can pull out an Excel table
1:04:23.280 --> 1:04:26.520
with with all the fields you want,
1:04:27.450 --> 1:04:30.930
and then you can look at a whole
1:04:30.940 --> 1:04:34.340
bunch of stuff all at once. And in general,
1:04:34.840 --> 1:04:41.840
I focus on the abstract. That's not safe,
1:04:42.140 --> 1:04:45.500
right? Because sometimes abstracts say nothing.
1:04:45.920 --> 1:04:49.730
They're not updated when people file continuation. Right. Here's our
1:04:49.740 --> 1:04:50.990
abstract from ten years ago.
1:04:55.260 --> 1:04:59.040
Yeah. The abstract is just going to give
1:04:59.050 --> 1:05:02.940
you the general idea of whether or not that reference
1:05:02.950 --> 1:05:06.240
is going to be worthwhile looking into. A little bit more.
1:05:06.250 --> 1:05:09.750
Right? It's like
1:05:09.760 --> 1:05:13.290
first triaging titles as like our good first triaging,
1:05:13.300 --> 1:05:16.420
or like figures, too, where you can kind of look through and be like,
1:05:16.430 --> 1:05:20.110
wow, that's completely off basis. Or it might
1:05:20.120 --> 1:05:22.600
be enough in the field where I should look at it a little closer.
1:05:22.660 --> 1:05:25.740
Right. I'll just beat up on
1:05:25.860 --> 1:05:32.070
a little bit more. I mean,
1:05:32.080 --> 1:05:35.280
this was a search that was done five or six years ago before I was
1:05:35.290 --> 1:05:39.480
on the scene. And they
1:05:39.600 --> 1:05:42.360
rely on boolean.
1:05:43.310 --> 1:05:47.910
What is your search string? So, like a search
1:05:47.920 --> 1:05:50.400
string, it's like a page long.
1:05:51.950 --> 1:05:55.620
And if you screw up one and or one
1:05:55.630 --> 1:05:58.980
or then you're screwed.
1:05:59.480 --> 1:06:02.760
And the other thing that they did, I mean, I don't know if they still
1:06:02.770 --> 1:06:06.120
did this, but they searched the entire spec,
1:06:07.820 --> 1:06:11.490
right? They don't focus on the claim, but we're going
1:06:11.500 --> 1:06:14.850
to look. And so what that does is it gives you
1:06:14.860 --> 1:06:19.130
ten times the number of references of
1:06:19.140 --> 1:06:22.730
which are irrelevant. Did they not go
1:06:22.740 --> 1:06:25.880
through the references for relevancy for you?
1:06:25.890 --> 1:06:29.480
It just spits out the references and you had to
1:06:29.490 --> 1:06:33.570
check them all. Well, this particular search that
1:06:33.580 --> 1:06:37.320
I complained about happened before I was there,
1:06:37.500 --> 1:06:40.680
but they go through and pick out a few.
1:06:40.800 --> 1:06:44.630
But you're shooting yourself in the foot if you you know,
1:06:44.640 --> 1:06:48.530
if your selection is 9000 references,
1:06:48.540 --> 1:06:50.960
right? I mean, it's just over. Well,
1:06:51.310 --> 1:06:54.800
that's what happens if you search everything.
1:06:55.190 --> 1:06:58.760
Right. Well, I think that's
1:06:58.770 --> 1:07:02.300
the importance of coming at it from many
1:07:02.330 --> 1:07:07.680
different directions. Right. I think
1:07:07.690 --> 1:07:11.460
that their orientations. They want to be able to show here's exactly
1:07:11.490 --> 1:07:15.300
how we here's our stream beginning and here
1:07:15.310 --> 1:07:19.080
it is. And so they sort of line up behind that.
1:07:19.910 --> 1:07:22.380
Anyway, it's funny.
1:07:22.920 --> 1:07:28.570
I mean, major firm and they're
1:07:28.580 --> 1:07:32.020
not half as sophisticated as show,
1:07:32.320 --> 1:07:36.190
you know. Well, thank you,
1:07:36.220 --> 1:07:37.900
David. Is to compare.
1:07:39.540 --> 1:07:43.560
It's odd. I don't see how they they
1:07:43.570 --> 1:07:46.980
don't have a Shelley that's it near in
1:07:46.990 --> 1:07:50.790
lies the problem. Everybody needs a Shelley.
1:07:50.800 --> 1:07:54.630
I can't have two in my life, a mother in law and this Shelley.
1:07:54.720 --> 1:08:02.190
I'm dogalright.
1:08:02.310 --> 1:08:05.520
Awesome. Thanks. Great job today, Shelly. I really appreciate it.
1:08:05.530 --> 1:08:08.670
Amy, thanks for joining the first time. We hope to see
1:08:09.180 --> 1:08:11.410
you hear you more in the future.
1:08:11.820 --> 1:08:15.370
Okay. Sounds good. Thank you so much. I thought it was wonderful.
1:08:15.380 --> 1:08:18.670
Thank you. Alright, take care, everybody.
1:08:18.680 --> 1:08:21.580
Have a great Tuesday. Thank you, Ashley. Thank you,
1:08:21.590 --> 1:08:24.190
Shelley. Thanks. Bye bye.
1:08:24.400 --> 1:08:27.460
All right. That's all for today, folks. Thanks for listening.
1:08:27.470 --> 1:08:31.000
And remember to check us out at Aurora Patents com for more great podcasts,
1:08:31.090 --> 1:08:34.870
blogs and videos covering all things patent strategy. And if you're an agent
1:08:34.880 --> 1:08:38.200
or attorney, it would like to be part of the discussion or an inventor with
1:08:38.210 --> 1:08:41.620
a topic you'd like to hear discuss. Email us at podcast
1:08:42.120 --> 1:08:46.090
and Aurora Patents com until next time. Keep calm and patent
1:08:46.100 --> 1:08:46.240
on.
1:08:57.540 --> 1:09:00.640
And then the man says,
1:09:01.140 --> 1:09:04.390
Twins, and it's just
1:09:04.690 --> 1:09:06.310
so smug.
