The Patent Law Land Grab

Before the airplane was invented, some people were concerned that everything that could be invented had been invented. Obviously, that was not the case then, and it's certainly not the case now. So as you create novel inventions, how do you protect them? What's the process? And what tools can help you and your team navigate the world of patents?Janal Kalis: It was like a black hole. Almost nothing got out of there alive. So it became slightly more possible to try and steer your application away by using magic words . . . it didn’t always work but sometimes it did.Ginette: I’m Ginette.Curtis: And I’m Curtis.Ginette: And you are listening to Data Crunch.Curtis: A podcast about how data and prediction shape our world.Ginette: A Vault Analytics production.Here at Data Crunch, we research how data, artificial intelligence, and machine learning are changing things. We see new applications every single day as we research, and we realize we can’t possibly keep you well enough informed with just our podcast. So to help keep you, our listeners, informed, we’ve started collecting and categorizing all of the artificial applications we see in our daily research. It’s on a website we just launched. Go explore the future at datacrunchpodcast.com/ai, and if you want to keep up with the artificial intelligence beat, we send a weekly newsletter highlighting the top three to four applications we find each week that you can sign up for on the website. It’s an easy read, we really enjoy writing it, and we hope you’ll enjoy reading. And, now let’s get back to today’s episode.Curtis: Today we dive into a world filled with strategy, intrigue, and artful negotiation, a world located in the wild west of innovation.Ginette: In this world, you fight for your right to own something you can’t touch: your ideas. You and your team ride out into this wild west to mark your territory, drawing a border with words. Sometimes during this land grab, people get a lot of what they want, but generally they don’t, so you have to negotiate with the people in charge, called examiners, to decide what you can own, but what if you’re assigned someone who isn’t fair? Or what if you want to avoid someone who isn’t fair? Is there anything you can do? Maybe, but first you need to understand how the system works. Let’s dive into the world of patents and hear from Trent Ostler, a patent practitioner at Illumina.Trent: The kind of back and forth that goes on oftentimes is trying to get broad coverage for a particular invention, and chances are, the examiner, at least initially, will reject those claims. Curtis: Claims define the boundaries of the invention you’re seeking to protect. It’s like buying a plot of land. There are boundaries that come with the property. These claims define how far your ownership of the invention extends. Claims can be used to tell the examiner why he or she should allow, or approve, your exclusive rights to your idea, giving you ownership over that idea, or in other words, grant you a patent.Trent: The examiner will say that they are broad. The claims don't deserve patent protection. And he could say that they would have been obvious. He could say that it's been done before—it's not novel, and so what this means for anyone trying to get a patent is that it's very complex. There are thousands of pages of rules and cases that come out that further refine what it is that's too broad or what it is that makes something obvious, and oftentimes there is a balancing act of coming close to the line to get the protection that you deserve but not going overboard.Ginette: So there’s a back-and-forth volley between the inventor’s lawyers and the examiner. The examiner says, “hey, you don’t deserve these claims,” and he or she gives you a sound reason or argument for it, and then you and your team try to persuade him or her otherwise, and hopefully overcome those rejections by arguing for why your claims are rea...