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Of clouds, crowd and patent quality

Recently with a new rule the America Invents Act (“AIA”) has created two provisions: Inter Partes Review and Post Grant Review, where any third party can apply to a newly formed body, the Patent Trial and Appeal Board (PTAB), to invalidate a patent.  This rule is really not all that new as under the pre-AIA rules any person could challenge a patent and this has been the rule in Europe and other jurisdictions for decades.  There is a simple reason that “any person” can challenge a patent’s validity based on why it is patents are granted in the first place. The basic theory is that by making this disclosure others can build on that novel disclosure to make further advances in the sciences and useful arts.  If what you disclosed is not novel and non-obvious, why should you be entitled to a 20-year monopoly? Why is this becoming such an issue now? And why are company executives, especially in pharma, losing sleep at night?

Even ten years back we did not have the ability to mine the vast amounts of data that is available on the public and private domain. Today, two things have opened up the field in a major way, the power of clouds and crowds.  Both of these factors are playing a major role in improving patent quality, albeit in a painful way.

Clouds

There are more than 8 million issued patents in the US; there are more than 50 million patents and patent applications around the world, which are by definition all unique.

Now if you take a look at a chemical composition patent, there are 1,000s of unique formulae captured in each of the patents to protect not only the new chemical entity (NCE) but also all of the associated or related molecules. If something already existed before the priority date of the patent, then a patent cannot be granted for that molecule as the molecule was already invented or conceived before the patent application. All of the molecules that have been captured in any of those non-patent literature prior arts also have to be checked before granting a patent.

Before the big data analytic boom, all of these “clouds” were disconnected. Now the clouds are starting to get connected! Not only are the clouds being connected, sophisticated analysis is being done in a matter of seconds to match up molecules that come from distant land and the most unobvious sources of information.

In the true spirit of innovation, this is the best thing that could happen. No more patents based on the same molecule or same technology should ever be allowed. The USPTO cannot possibly search every molecule on the planet, but the owner of which is a multibillion-dollar company probably will have the power to perform better searches I am sure.

The biggest challenge with patent analysis software available in the market today is that they treat patents as a large document, very few engines are looking at a patent and dissecting the specification, claims, inventors and trying to predict quality and relevant prior art from each of the those elements. Smart semantic analysis with predictive power is the key element for automating the prior art search process.   

Crowd

Never discount the power of an individual! The open innovation wave is catching on with not only large companies, but also with SMEs. Now you can solve R&D challenges within your company by engaging people in India, Serbia or Brazil who are probably from verticals, which are completely outside of your industry. All they need is a computer that is connected to the Internet and knowledge of the science. In this regard, there are many companies that are utilizing crowd sourcing and co-creation. Some of the companies are even utilizing the power of crowd-sourcing to either perform patent searches or to invalidate patents. 

The crowd model is so powerful, that someone sitting in Poland can search through and find sources of information not only in Poland but also around the world. In other words, we have empowered the crowd to be more efficient. Crowds like clouds were all disconnected, but now with the power of social networks and science-based networks, they are gradually getting more connected. In the patent space, companies are still extremely closed in their approach and probably will have to shift their strategy to include the power of the crowd as opposed to shunning the model. Crowd-sourcing models are expected to grow rapidly.

The USPTO has been paying attention to possibility of crowd-sourcing to identify relevant prior art, but no major changes have been instituted yet. Connecting the crowds in a coherent fashion holds the key to utilizing the power of all.

What does this mean for the patent system? Well, clouds will get more and more connected. In fact “smart connecting” of clouds is the next wave of innovation. Google searches do not cut it anymore; you have to make sense of the data by predictive analytics and big data analytics.

Hopefully, we all want new and novel inventions to be exactly that, new and novel.  Twenty years of exclusivity is the reward for something disclosed that is new and novel—it is not the reward for simply filing and receiving a patent.  There is no legitimate basis for distinguishing between an invalid tech patent and an invalid pharma patent—an invalid patent is simply that, invalid no matter what technology area is at issue.  An invalid patent does nothing to advance the sciences and useful arts and should not be rewarded with any period of exclusivity. If industries such as pharma have truly spent its money wisely and properly patented a new technology, then they have nothing to fear from the current AIA. 

Nag is the CEO and president of IP Shakti LLC, an innovation strategy and advisory company for monetization and licensing valuable IP.

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