For the past 12 years as an IP Strategist, I’ve worked exclusively with clients engaged in developing and delivering innovative products to consumers. From this unique vantage-point, I think it’s time for some entrenched patentability assessment practices to be retooled for innovators. I’ve come to this conclusion because many of the ingrained patent application development processes in my profession consistently fail to properly address the non-standard nature of innovators’ products and technology when assessing the scope of patent protection that can, and should, be recommended to help these risk-takers extract maximum value from their efforts.
An example of how strategic IP-thinking differs from that of traditional patent attorney processes is that I believe the unique nature of an innovative product or technology itself should serve as the focal point of any patent protection strategy. Presumably, the identification of an unmet need in the market by an innovator means that the innovator’s product or technology is new, and that the prior art is, by definition, different. This approach is quite different at least because traditional patent attorneys are trained to review the prior art as the focal point of patentability inquiries. In other words, instead of saying “how is this innovation different from the prior art?” as is conducted in status quo patentability inquires, for innovators, we should start with the understanding that the subject innovation is, in fact, different. We then work to articulate the differences in a way that enables the client to generate protection for the full scope of the difference for the innovation, and not merely the differences in relation to the prior art. When you start at a different place, you are entitled to end up in a different place, with that being broader, more comprehensive protection for innovative new products and technology when generating patents for innovators.
My blog post, Better Patent Services for Innovators: Patentability Reviews, provides examples and solutions to do a better job providing patentability review, or “opinion,” services for innovators.