Business Methods Monday - USPTO Update

News from last week's USPTO's Business Methods Partnership Meeting:

Only the patents classified in Class 705 are considered business methods patents.

The allowance rate for applications classified in Class 705 is 23% or put another way 77% are rejected or abandoned.

80% of the patents in this class are tied to a computer.

Pendency to First Office Action is 31.7 months - over 2.5 years.

Pendency to Issue/Abandonment is 46.7 months - almost 4 years.

Through July 2010 there are 312 Examiners focused on business methods patents. Through July 2,100 patents have been granted.

In 2009 there were 1,725 patents granted with an Examiner Corps of 328 examiners.

(Patents up...Examiners down...)

They expect the pace for business methods patent filings to increase both as a result of the resolution of the Bilski case by the Supreme Court and an improving economy.

Patent Argot

If the inventory of ready-made words in our language determines which concepts you are able to understand, how would you ever learn anything new? -- Guy Deutscher, Honorary Research Fellow, School of Languages, Linguistics, and Cultures at the University of Manchester.

This quote in a recent New York Times Magazine distills both the challenge and the triumph of a patent. The ability, in a single sentence, to stake a claim to an invention and define the boundaries of what is yours. Then to use that single sentence as the framework to describe how to make or use it your invention. A single sentence to describe something novel. The choice of words, their structure, and the links to the instructions in your specification will all determine if you have an invention that will generate revenue or an invention that will have a nice certificate that you can hang in your office. This unique language and vocabulary and the structure and flow of innovations, inventions and patents is the Patent Argot - the special and secret language of patents and inventions.

For many, the Patent Argot vocabulary of patents is an impenetrable wall between business owners and entrepreneurs and understanding which patents are relevant to your business and which are not. It is the Patent Argot is what keeps you from finding things. It is part of why you are never sure if your freedom to operate report has really covered all the subject matter. It's what drives that strange feeling you get when you've read a patent and you say to yourself, I read English and I have no idea what this thing says.

An argot is, "a specialized idiomatic vocabulary that is peculiar to a particular class of people (the Intellectual Property and Patent Cognoscenti.) One dictionary defines it as a special language, especially that of an underworld group, devised for private communication and identification; a language with its own style, grammar, and vocabulary. While the underworld group aspect of the definition might resonate with anyone who's ever received a Cease and Desist letter, Patent Argot is a salient feature of almost any patent you read (or write.)

Inventions have always created new vocabulary. The Patent Office allows inventors to be their on lexicographer - to create their own dictionary of specific terms that can be used to describe their inventions as long as the definitions of these words are "accurate, complete, unambiguous, and concise" - a tall order.

Creating new words to describe inventions has been around for as long as man has been inventing things. In the 1500s, Leonardo Da Vinci created his own inventive argot. His first flying machine was defined as the "ornithopter" - ornithos for bird and pteron for wing. (The Notebooks of Da Vinci may provide insightful prior art.) In 1863 Ponton D'Amecourt invented the term helicopter to define his flying machine - "helico" spiral - "pter" for wings. The contemporary spin is the VTOL - the Vertical Take Off and Landing vehicle.

Another important feature of the Patent Argot is the desire to craft language that is as broad as possible so that your patent can reach into the future to cover things not yet invented. Fuzzy boundaries on an invention that can be defined in context help a patent be more flexible. It is a language that uses today's vocabulary in the broadest possible way to compensate for a future we cannot foresee at the moment a claim is crafted.

It is why we have Portable Law Enforcement Data Processing Devices (handheld parking ticket issuing devices) or make purchases on Amazon.com or the iTunes Store using a single action ordering system. It's also why you need to look for new ways to search so you can bypass the Patent Argot and use a framework that understands that nutriceuticals are dietary or nutritional supplements or that a toaster is also a heating element with a timer without you having to tell it so. (Shameless plug for Coronado IP.)

In the Patent Argot posts we'll explore the impact of the secret language of patents and how understanding it will help you understand the secret world of patents and of course, help you Search The Way You Think.

Are You Ready for Some Football?

The South Carolina Gamecocks are 3-0. A very nice start. Drew Brees and the Saints won their opener but it was filled with tense moments. The Redskins beat the Cowboys, just barely, and Rex Ryan’s mother is upset with him because of his colorful choice of language. And, fantasy football season is in full swing.

Fantasy Football is basically a Computerized Statistical Football Game – A method and apparatus for playing football on a computer system based upon actual football performances by a database of football players. The computer football game is played by a league of individuals, each of whom can individually, or in groups, own a franchise. Franchises select their players in an initial draft. The starting players are then selected by individual franchise owners. Wins and losses for the computer football games occur by calculating a total of each individual player’s points who make up the team. The calculation of points is done automatically either manually or using actual weekly performance by individual NFL players as the basis for determining points.

So reads the abstract of US Patent 4,918,603 filed in August 1, 1988 and granted April 17, 1990. A pretty quick turnaround by the Patent Office.

This patent is cited as being the seminal work in patenting of fantasy sports inventions. The patent is classified as an amusement device – a simulated athletic event including a simulated projectile (I’m guessing that would be the football) that includes a means for processing electronic data. Is this a game or is it a business method? Is it a game that is a business method?

One of the inventors, Patrick Hughes, who had been playing fantasy football with his friends, patented his version of the game, secured a license with the NFL Players Association and NFL properties and proceeded to find a corporate sponsor, Miller Brewing Company. With Miller’s backing the game was soon being played in 6,300 sports bars around the country.

The inventors went on to extend their fantasy sports empire to basketball where they received an endorsement from Cal Ripkin, Jr. and basketball where Grant Hill became part of their celebrity deal. Fox Sports even had a version branded as Terry Bradshaw Fantasy Football.

The ‘603 patent has three claims – one independent and two dependent. Here are all three claims:

What is claimed is:

1. A computer for playing football based upon actual football games, comprising:

means for setting up individual football franchises;

means for drafting actual football players into said franchises;

means for selecting starting player rosters from said actual football players;

means for trading said actual football players;

means for scoring performances of said actual football players based upon actual game scores such that franchises automatically calculate a composite win or loss score from a total of said individual actual football players' scores;

said players' scores are for quarterbacks, running backs and pass receivers in a first group and kickers in a second group; and

wherein said players in said first and second groups receive bonus points.

2. The apparatus according to claim 1, wherein said bonus points for said first and seconds groups are based upon complex or difficult plays.

3. The apparatus according to claim 2, wherein said complex and difficult plays include extra points for a quarterback who receives or runs for said touchdown, extra points for said running back for throwing or receiving a touchdown pass, and extra points for said pass receive for passing the ball or running for a touchdown.

Here are some links to some of the inventor’s other sports fantasy patents.

7614944 – Systems and methods for providing multi-level fantasy sports contests…

7,001,279 - Systems and methods for providing multiple user support for shared user equipment in a fantasy sports contest application.

7,548,242 - Systems and methods for integrating graphic animation technologies in fantasy sports contest applications.

Old School Vs. CoronadoIP Search Lesson Plan

Old School Search Lesson Plan

How to effectively create a list of keywords for search engine research.

Duration: One hour to one hour and a half.

Could take significantly longer for complex, new, scientific or technical topics.

1. Develop synonyms for researching different topics.

2. Use a Thesaurus to identify synonyms as a strategy for generating keywords.

Learn how hypernyms and hyponyms can assist in broadening or narrowing a research focus.

(For the non-linguists among us hyponym is a term that denotes a subcategory of a more general class: “Chair” and “table” are hyponyms of “furniture." "Musical instrument" is a hypernym of "guitar" because musical instruments include guitars.)

3. Critically analyze search engine inquiries using a variety of keyword combinations. Develop search word matrix.

Explain that selecting the right keywords is a mandatory task before you start searching as part of an old school search strategy. Stress the need to use a Thesaurus, and to consider synonyms of search words if your searching has not yet led to useful research results. Stress the need to be patient in your quest for information.

CoronadoIP Search Engine Lesson Plan

Five minutes

Working by yourself practice you wrist motions using your mouse to make sure you are feeling flexible and ready to copy and paste.

Forget about all this synonym, hyponym, hypernym stuff. No need to deal with any of this since CoronadoIP already understands all the words and the concepts they represent.

Use reports of new scientific findings to execute searches.

Exercise: Go to the current issue of Nature Magazine. Copy the abstract from the article Direct visualization of secondary structures of F-actin by electron cryomicroscopy into the concept search box using your limbered up wrist.

Enter search.

Get back a list of all of the patents that are closest to the abstract. Start exploring if this is really a novel idea and how this might impact your research and grants.

Done.

Search the Way You Think.

Comment Has More Than 1000 Characters

After posting the Calling Edward Tufte post I decided I should post comments directly on Director Kappos' public blog. So, I toned down my somewhat flip commentary here into a more respectful post and posted it in the comment section. Average word size in the English Language is 5 characters. Number of words in Director Kappos' Data Visualization Center and The Patents Dashboard post - approximately 1040. If you post comments larger than 1000 characters your feedback is marked as spam. I should have just posted a link back to Search The Way You Think.

So much for "We look forward to your feedback".

Calling Edward Tufte

Calling Edward Tufte, when you get done fixing Recovery.Gov can you stop by at the Patent Office to fix their new Data Visualization Center and the Patents Dashboard? They really need an information visualization makeover if anyone is going to learn anything useful from this data.

Yesterday the Patent and Trademark Office released its new Data Visualization Center Patents Dashboard. (Here's the link in case USPTO website isn't being friendly to links. http://www.uspto.gov/dashboards/patents/main.dashxml.) The Commissioner's blog, Director's Forum: David Kappos' Public Blog, says, "This tool will give the public access to traditional measures of pendency as well as several new pendency tracking measures. We are also providing other important data covering USPTO patent operations in a convenient dashboard format." (Emphasis added...)

The most important message in the Director's post is that "...the patent backlog is stalling the delivery of innovative goods and services to the market while hindering economic growth and job creation....the current backlog of more than 700,000 applications may cost the US economy billions of dollars due to what is called "foregone innovation" -- commercial opportunities that fail to get off the ground because of long delays in necessary patent protection." In short, people simply give up and move on because they don't have the time or energy to wait around for USPTO to look at their applications. Things don't get built, companies don't get started, people don't get hired.

Ok, so what does this new Patents Dashboard do to assist the public at large and the IP community in particular in understanding what's going on at USPTO? Not much.

USPTO's new Patents Dashboard obfuscates, renders obscure, unclear or unintelligible, the urgent and critical patent pendency issues this data reveals. This unsophisticated and almost content free presentation of data does a disservice to the Examiner Corps and the inventors and tax payers who pay for all this and rely upon USPTO's decisions. The cartoon-like speedometers don't convey to the viewer either the complexity of issues that drive pendency or the economic urgency of solving the pendency problems. Little morsels of data are buried among animated speedometers objects complete with moving dials in an array of colors that have no meaning other than to offset the black background of the screen. So much screen real estate, so little data. Or as our Marine pals would say, very bad signal to noise ratios. So much for transparency.

The dial above shows that Traditional Total Pendency in months is 35.4 months. That's almost 3 years. This is an average. There are plenty of Art Units where the pendency is considerably longer. The speedometer is significantly larger than the data it presents. The data being conveyed is smaller than the dial's black background. But what's the context? What does this mean? When you scroll down to the text that accompanies the colorful dial what you learn is that pendency is actually going up for the last five months. Clearly the dial is moving in the wrong direction but who can tell by looking at it. This is alarming.

The choice of green to show the pendency information conveys the "all systems go - we're at the green light" message. The color selection has absolutely no meaning. What is the reason that the Fiscal Year Production speedometer is purple or that the Backlog is in Orange? Anyone who is serious about building a dashboard knows that color is an important visual cue to let users know what's going on. What's going on here is the use of color to distract from the data.

There is no way to look at the dial and understand how this measures up against previous performance or the goals USPTO has set as part of its strategic plan. The accompanying text for the Traditional Total Pendency speedometer says, "Our goal is to reduce Traditional Total Pendency to an average of 20 months by 2015." Where are these metrics incorporated into the presentation? What about some kind of visual indication of where the pendency is going relative to this goal? How about one of those Tufte sparklines that shows the history over a longer timeline to give the reader some indication of how USPTO is going to cut 15.4 months off the current pendency in just over 4 years? Here's a Back to the Future Question: When was the last time USPTO had a 20 month pendency anyway?

Then there is the whole issue of whether the visual representation matches the data. Here is a metaphor where improvements mean that the speedometer is going to look like its going slower while the bar charts that accompany them are going to show values declining. This is intuitively and cognitively hard to process. How does this give the viewer any sense of when things are improving? A very odd approach at information transfer.

And then there's the Patent Examiner dial. All in white except for the graphics that are all in black. Are these guys unworthy of a color or is the goal to present the grime statistics in black and white?

Here's what's troubling about this dial and the write up that accompanies it - there is absolutely no linkage between pendency and the number of patent examiners. Isn't the number of patent examiners a major issue for USPTO? USPTO recently issued a call to industry to have retired Examiners return and for skilled patent professionals to consider a career as an examiner. How does this link with the data they are presenting here? Doesn't this chart indicate that Examiners are bailing? How does this number match up against attrition? If every month USPTO adds 50 examiners but 75 leave, things are not good. The number of Examiners by itself doesn't indicate what's going on. How hard would it have been to have an indicator for the target number of examiners and measure the current count against the target. Let the user know what this number means vs. the goal.

Doesn't it make sense to show the number of examiners relative to the Technology Centers where the backlog is? How deep is the backlog relative to the workload of the examiners who are expert in the subject matter of the patent application? How does this shortage of Examiners reflect the availability of similar talent in the US? Are we running out of skilled chemical engineers or are the chemical engineers choosing to work somewhere else? Is the pendency tied to the Examiners who are available to examine the patents or is it tied to the complexity of the patent applications being submitted? How about the average number of claims by Art Unit? What about the average number of patent and non-patent prior art references? We know that Life Sciences patents are longer and have more unique words and concepts that the "average" patent (whatever that is these days.) We know that fear of being charged with inequitable conduct is causing some applicants to throw in the every conceivable reference. How does this behavior impact pendency? But can you learn anything about what's going on here from this "Dashboard"?

As they used to say in the old Wendy's commercials, "Where's the Beef"?

Aside from the typos in the content, the downloads that don't work, the ridiculous gauge metaphor, all of which is covered under the "this is a beta release" disclaimer, how much did this thing cost to build? Is this yet another part of the squandered IT budget? Did someone go out and buy a widget tool to put this thing together? How long has this been in the works? Who is supporting it - USPTO personnel or one of their contractors that just got slammed by OMB IT Dashboard? PTO might take a few lessons on effective use of dials on a dashboard by having a look at the OMB IT Dashboard.

Edward Tufte is teaching his one day Presenting Data and Information course in Arlington at the end of the month. USPTO's money would be well spent sending a few of their data visualization people to the course and then build something that conveys information rather than cartoon dials.

Perhaps Dr. Tufte can swing by and provide some guidance after the course is over.