Issue link: https://read.dmtmag.com/i/120608
LEGAL LINE Continued from page 11 town. Simply put, as in most government operations, there are no rewards for innovation and efficiency and no "alternate source of supply." What has now happened is that an 18th century system born with the high hopes and boundless optimism of a new nation has turned into a sprawling bureaucracy that is barely moving, if at all. In the "reform" that has occurred and is in place, instead of examining itself, the patent office has simply "fixed" what was neither broken, nor important. For example: 1. The fights between who is/was the actual first inventor were a miniscule fraction of patent disputes, either in re-examinations in the patent office, or in the courts. The new "first to the office" rule only makes a wider field for litigation and other costly patent office proceedings and solves nothing. 2. The "first to file" rule has stampeded the herd into tens of thousands of safety filings, particularly by companies with herds of lawyers to make sure something was filed before a competitor or patent troll hits the books ahead of you. In reality, instead of fixing minor problems and addressing what was really broken, the government has created a mutant monster from the parts of the old monster, and to pay for it, has imposed new fees 62 on what it calls "the regulated community." This latter concept is happily borrowed from the U.S. Environmental Protection Agency. In essence, instead of serving the community of industry and commerce for the greater good of the country, balancing the need for industry and jobs with the protection of the environment for the health of the public, industry has become the regulated community and is ripe for the shearing. The "new" patent office is blasting down that path, seeking to escape the reality of its own inefficiency, by simply charging more for more of the same inefficient service. Just buy more monkeys and more typewriters, instead of one of those new-fangled computers that connect to that "interweb'' thing. Not quite that bad, but close. Where does this leave the GET maker, the piston and liner manufacturer, the undercarriage company? Do you spend the money with the lawyers and file "something," even if it's not fully developed? What happens if your field tests or shop tests show that parts of your invention already filed are not working well enough, or are too expensive, to take to market without major revisions? Do you file a new patent every time you shift directions or stay the course until marketready and hope to be first in line? There are no good choices here. If you preemptively file when partly ready, you start the process to reveal your invention, which might not end up the same or have the same "patentable" elements, and risk receiving a commercially worthless patent. Alternatively, if you finish development and then file, a competitor or troll could have learned of your concept or product and beat you to the filing window. Then, you litigate in the patent office or courts merely to save what is already yours. The answer, in part, is to change your tactics and learn how to live with and beat the system at its own game. This is how it works with several of our clients, who have committed to the patent process as part of their business model. The simple answer is embedding the lawyers in the design process at the earliest possible point in the development process. If you want to achieve the dual business goals of making products that don't infringe and that also may be patentable, don't come to the lawyers with "finished" ideas or products and learn that Cat or Deere has an obscure patent on your idea, and then either abandon the project or run back for a costly rework. Practice has demonstrated that paying for patent advice as you move from the "invention" moment to production and/or patenting is actually cheaper than finding and fixing later, since much of the work of and by engineering and the lawyers in the process can be used in crafting the patent(s) for the products themselves. Additionally, integrating the lawyers in the process teaches them your product and business. The time needed for evaluation and advisement will shrink as the knowledge and working relationship grows, thus reducing the project-byproject learning curve. Soon, this could lead to lower overall advisement costs for this part of your business. In short, pay some now for better overall performance or pay a lot later for playing catch up and fix up. Now, although the Mayans were clearly the most advanced scientists and engineers of their time, when they did not get the "wheel" idea, they probably missed the "lawyer" concept, as well. Thus, their predictions are only coincidental with the new patent process, or are they? We can debate this over a cold drink in Banff this fall. Hope to see you all there. ● Robert McIntyre Wegman, Hessler and Vanderburg 6055 Rockside Woods Blvd., Suite 200 Independence, Ohio 44131 Phone 01.216.642.3342 (office) 01.216.403.0516 (Cell) e.mail RWMcintyre@wegmanlaw.com IDA UNIVERSAL March-April 2013