30 June 2016

Uncertainties in the patent granting process

Being an entrepreneur involves taking risks. A patent can provide certainty. But the patent granting process also involves uncertainties.

A while ago, the well-known IP blog The IPKat reported on an experiment. Participants were given a time-consuming task to carry out in a lab for which they might win a prize. They were given some – but incomplete – feedback on how well they were doing and they were allowed to decide for themselves when to stop performing the task. The provisional conclusion? Many of the participants did not make rational decisions and often went on too long.

According to the researchers, this was a good simulation of the patent granting process: obtaining a patent costs time and money; it is uncertain whether a patent will be granted at the end of it all; and the "feedback" from the patent granting authority is not always as complete as one might wish. They therefore concluded that patent applicants are often too optimistic about their chances.

This seems to be rather a sweeping conclusion on the basis of an experiment in a lab. For example, the article by The IPKat gives no details about the participants. It could very well be that they were students rather than entrepreneurs. Details about how the incomplete feedback came about were not given either. Nonetheless, the research does invite speculation about possible factors that may make decisions in patent granting procedures difficult.

The article suggests that "optimism bias" and "overconfidence bias" could be possible causes of continuing with the task for too long. "Optimism bias" is the false impression that nothing bad can happen to you. "Overconfidence bias" is when people have more confidence in themselves than can be justified on the basis of the facts. Something that was not mentioned, but which was probably also important, is the "sunk-cost fallacy": if you have already put a lot of time and effort into a "task" (patent application), it can sometimes feel like a waste to pull the plug on it.

Uncertainty will always remain. Patent laws try to describe concepts such as "novelty" and "inventiveness" as objectively as possible, but their assessment will always remain subject to human interpretation. It is moreover impossible to have a complete picture of all relevant prior art. A notorious case revealed that even an old Donald Duck story could deal the fatal blow.

And yet there are ways of reducing the uncertainty in the patent granting process. It is a good idea, for instance, to research existing patent literature before having the patent text drawn up. This can be done through the website Espacenet. A patent attorney can also conduct this research. Preliminary research of this nature can provide a better impression of the chances of success and an "overconfidence bias" can possibly be avoided.

A patent attorney can also help to estimate an application’s chances during the patent granting process. For example, they can provide information on the strength of the arguments put forward by the researcher at the patent granting authority. To use the analogy of the experiment: a good patent attorney can ensure that the feedback is less incomplete, so that the right decision can be made.

Uncertainty is difficult to avoid when attempting to obtain a patent, but a patent attorney can help to reduce this uncertainty and provide a realistic estimate of the chances at each stage.