On my drive to work, there was a trash bag on the freeway, then a box, and later a couple of bags flying around. I wondered where this garbage came from. There were a number of likely candidates: a small pickup truck loaded with miscellaneous junk, a dump truck and a large truck with a cargo box full of construction debris. In the end, I never could identify the source because I never saw any trash fall out of these vehicles. This reminded me of the debate over patent quality. Certainly, the U.S. Patent Office has taken sharp criticism for issuing so-called garbage patents, and procedures like inter partes review, covered business method review and post-grant review were created by Congress to address the quality of issued patents. While some of the criticism is a reaction to troll activity, it is clear that careful scrutiny of patents will only increase as the U.S. patent system continues to evolve.
This increased scrutiny collides with the trend toward commoditized patent drafting. Patent portfolio managers have to deftly balance application budgets against the need for high application quality. From the standpoint of managing portfolios encompassing a wide variety of attorneys and patent agents drafting patent applications for clients, my approach has been to clearly set expectations, leverage efficiencies of scale and employ a team approach.
In terms of setting expectations, it all starts with communication. This requires talking with the client at the outset to define quality work product from their viewpoint and the goals for the application, then conveying that expectation to the attorney or agent drafting the application. In managing this process, it is critical to help the person drafting the application account for time contributions from other team members and budget for review and revision, which in most cases is where budgets break down.
Leveraging efficiencies of scale boils down to assigning work consistently to help drafters obtain the benefit of writing about familiar technology. Similarly, maintaining a core team provides consistency and efficiency in drafting the applications. This requires paying attention to quality-of-life issues, workloads and retention of team members. While you cannot control the frequency and number of disclosures that cover similar technology, working with the client to understand the pace of innovation and distribution of disclosures among firms can help guide creation of drafting teams to maximize available efficiencies.
The team approach to drafting still relies on an individual drafting the application, but involves multiple team members working on similar technology. I look for team members who bring insight from both a patent drafting/prosecution perspective and a litigation perspective to increase the likelihood that the application will survive not only patent office review, but also a Patent Trial and Appeal Board or district court challenge. Some of the payoffs from the team approach are different perspectives on the same technology, shared insights from cumulative experience of both drafting and prosecuting applications, and a sense of camaraderie. All these things contribute to producing high-quality applications that are on budget and on time.
In particular, the goal is to put team members in a position to succeed. In addition to the process outlined above, this requires being mindful of intangibles and motivating team members. It is simplistic to think that compensation alone motivates good work. In my experience, I have found that the best performers enjoy the technology, like working with particular inventors, feel that their efforts are part of a bigger goal, enjoy working with their team members and thrive on sharing their experiences with the team.
Outside counsel may ask, “How do I make sure I have a good team in place?” In addition to looking for consistently good work product, I would look carefully at who is managing the team. Ask that person about his or her approach to putting together and managing a team. I would also pay attention to inventor feedback indicating a genuine interest in the technology and enthusiasm for the work as a positive indication that team members are properly motivated. In contrast, frequent turnover and inconsistent work product would be red flags. Providing feedback regarding quality of work product and positive/negative team member experiences can allow the team manager to address potential issues and continue to refine the team.