How to Spot Bad Patents
Investment-Grade Patents represent only a small sliver of the patent universe. Their value comes from a huge amount of research and thought. However, bad patents are easy to spot.
These less-than-optimal patents have certain characteristics that can easily be identified by anyone: the inventor, the investor, or anyone in litigation. Use this as a first pass checklist to make sure the patent application or patent that you might be reviewing might be worth looking into a little bit further.
Investment Grade Patents Do Not Have Legalese
There is a myth that patents should be written in stiff, painful legalese. This is completely wrong.
When I write a patent application, I have a mental picture of pushing the patent across the table to an infringer. I want them to instantly understand the invention so that the instantly understand that they infringe. I want their eyes to open up like saucers and know, without a shadow of a doubt, that they need to negotiate.
If the patent was tersely worded in incomprehensible, thick, convoluted language, the infringers would shrug their shoulders and pass the patent to their patent attorney for analysis.
Patents are designed to put the public on notice about an invention. The public should be able to read and understand the patent application.
My first experience of dealing directly with a patent attorney who was drafting my inventions was at Hewlett Packard. HP had announced a big push for invention disclosures in the late 1990’s, where they paid $100 to any inventor for any invention disclosure that was filled out. Needless to say, I spent two weeks doing nothing but writing up invention disclosures and submitted 15 invention disclosures for a tidy $1500 bonus. I probably did not get any other work done during that time, but several of my inventions were sent to the patent attorneys to write up.
The first patent attorney called me and did an interview over the phone. I explained the invention to him, and a couple weeks later, I received a draft of the patent application.
The patent application had the most dreadfully complex language I had ever seen. It was very hard to read, with long, rambling run-on sentences and paragraphs that looked like walls of words. This was my first time really reading a patent application, so I went through it with a fine toothed comb, trying to understand what the attorney was doing. At some point, I gave up. It was just too hard.
But having had no other experience in the field, I assumed that this is how it was supposed to be done. Why would anyone write something so complicated? How do you even do that?
It was several years later, after I began to write patent applications as a patent agent, that I began to understand.
It is much easier to write a thick, dense wall-of-words than it is to figure out the keys of the invention and highlight them.
The job of the patent attorney is actually difficult. The inventor has been working on their technology for a long time, maybe two years or so. The attorney walks into the room and has about one hour to digest all of this technology. The patent attorney needs to understand the invention better than the inventor, and has less than an hour to do it. This is a non-trivial task, but many times it goes pretty well. When the attorney is not that familiar with the technology, it can be very challenging.
The legalese-ridden patent applications comes from either laziness of the attorney or from the attorney not understanding the invention in the first place. It can also happen when there really is no invention at all, but the client insists on filing a patent, which is when the attorney needs to hide the ball and make the examiner guess what the invention might be. This is the “hide-the-ball” patent application.
Mark Twain famously said to one of his friends that he did not have time to write a short letter so he wrote a long one instead.
It takes a considerable amount of work to distill an invention down to its core and figure out how to put that in words. But it is far easier to just write endless details that may or may not actually matter, which adds bulk to the patent application. For the lazy attorney, merely dumping a bucket full of words into giant paragraphs is much easier than thinking through the invention and carefully, precisely parsing the points of novelty. From the client’s standpoint, the bulkiness of the patent application makes them feel good. A fat patent application makes them feel like they invented something substantial.
The truth is that clients and often inventors will rarely actually read the patent applications. The first time I work with a new inventor, I assume that they read through the patent application in detail. However, when we have done 20 or more patents together, I seriously doubt that they read it at all, other than to skim the figures.
With that first patent application that I reviewed during my HP days, I did not know any better. I assumed that the patent attorney knew what they were doing and that this was the best way to write a patent application. I also assumed that the legalese was a secret code that everybody in the industry understood except me. Maybe patent examiners go through classes to learn what all this really means, right? I supposed that law school teaches you how to read and write this way so that every attorney instantly knew what it all meant.
Nothing could be further from the truth.
If you cannot understand the patent application, neither can anyone else.
If the inventor cannot figure out the patent application, there is a 100% chance that no one else will understand it, either. When a patent is hard to understand, the only way to figure out what it means is to go to court. This is expensive and ultimately a waste of time and money.
In the early 2000’s when patent trolling was coming into its heyday, there was a big push in the patent circles to write patents so that they could not be understood. Some attorneys still use this style. These patents are designed to be litigated. More properly, these patents are designed for trolling.
If I sue you with a patent that neither of us understands, it will take you $1M in legal fees just to figure out what it means, so it is easier to settle for $500,000 without ever reaching that point. These patents contain inherent risk due to the uncertainty of what the patent means, and patent trolling is essentially trading on that risk. However, that is not an Investment Grade Patent.
I Want Everybody To Understand The Patent
I want everybody to completely understand a patent, and I only want the patent I deserve. If I get a patent that I do not deserve, I am likely to invest a lot into enforcing, licensing, or whatever, and the last thing I want is for the rug to be pulled out from under me.
I want the examiner to understand the invention completely. For an Investment Grade Patent to survive litigation, we need to know that the examiner has done a good job of searching and that there is no other prior art out there that will invalidate the patent. For that, I want the examiner to identify the point of novelty and see if we actually deserve the patent.
My patent drafting style has evolved over the years. When I was inhouse counsel at a startup company, we filed 100 patent applications in two years. I developed a style where I took 3-7 paragraphs and simply, directly, and appropriately described the invention in summary form. I actually had examiners call me and thank me for this explanation. The examiners said that they knew without a doubt that they found the closest prior art and that they were very comfortable allowing the patent to be granted.
A well-written patent is also clear to the public (read: infringers). A well-written patent leaves no doubt about what the invention really is, and a judge and jury will be able to tell as well.
One thing I try to enforce with Investment Grade Patents: use third grade book report style writing. A topic sentence for every paragraph. Preferably, the first 3-5 words is the subject of the paragraph. Paragraphs should have 3-5 sentences that explain the topic sentence. Patent applications are not like books, where you settle in to understand the story and where every word is part of the enjoyment. Patent applications are technical documents that are referenced over and over to find specific elements. It is important to skim the specification and find the details on some specific feature of the invention. It should be said that this writing style is actually much harder than it seems, which is probably why we all struggled with it in third grade and struggle with it today, too.
The beauty of the third grade-book-report-style is that it is easy to read.