How is COVID-19 changing patent practice?

 How is COVID-19 changing patent practice?

We have all had to adapt in the past few months, as we have become used to widespread lockdowns, home working and reliance on technology rather than face-to-face contact. With many of these changes likely to become permanent, or at least to be in place for a long time to come, we spoke to IP colleagues in the Bay Area about their experiences, the lessons they have learned and how we can all adapt to the new ways of working while also staying sane and remaining productive.

Here are some the top tips they shared.

Key takeaways

We have grouped the advice into 9 recommendations, from general to more IP specific:

  • Embrace the opportunity to know your colleagues like never before. Take time to listen to them and take advantage of being able to talk directly to them. Share personal stories and learn how others are finding solace, calm and interest in these challenging times

  • Create a new working environment so that you find a routine through sticking to the same hours or planning ahead. This includes making sure you have the right tools to implement this routine

  • Balance is good: between home and work life, between reliable existing processes and the need to adapt to over new scenarios, between budget revisions and what need to be achieved, between lack of usual materials and learning to adapt to the new. Keep in mind that balance may lead to compromise

  • Accept fatigue that may set in from time to time when for instance technology becomes variable. This is all part of the challenge to overcome. Be creative then and revisit classics like chats and phone calls

  • Keep things simple like a simple invention disclosure form or empower inventors to help you with invention harvesting. Sometimes it can be helpful to “keep the statutes out of the discussion” with the inventors and not appear too much as a lawyer and more as one of them

  • Educate inventors even more than before and provide practical tips to smaller groups, invest in an IP savvy correspondent that will be your bridge into a department or unit

  • Innovate in this new normal as the situation has changed for everyone and workflow processes may have to evolve. Inventors may have more time for you and innovation may even come from untapped areas in the company

  • Add value by going the extra mile to help build a business value for any patent case, new or existing. Respond to a possibly reduced budget by going as far as rethinking filing strategy and pruning of the patent portfolio

  • Trust. Patent portfolios are resilient. Rely on cooperative and responsible outside counsel. Scale back where needed and focus on long term strategies.


Read more about all these recommendations below

1. Embrace the opportunity
The new routine of working from home is a challenge for everyone but provides an opportunity to get to know your colleagues in new ways. You can’t meet in person by the water cooler or the parking lot, but you can set up virtual coffee meetings with no agenda other than to have a casual conversation. Sharing personal stories and discussing how we are feeling helps to promote understanding and find calm amidst the disruption.

Getting a peek into each other’s home lives also provides the opportunity to understand more about who we are outside of work – family, hobbies, interests – so don’t be embarrassed to discuss the challenges you are facing, share pictures and stories, and ask questions. “It’s important to stay in touch with your team, and see how they are all doing,” says one patent attorney. “Get involved in their lives; ask the seven-year old a riddler!” says another.
2. Create a new working environment
Juggling multiple work and home commitments requires more planning than before. Some people recommend trying to stick to the same hours and routine that you are used to, but if this is impossible, then try to create a structure that works for you, keep to it, and make sure you turn off your computer at a reasonable time. Aim to build regular habits: for example, one attorney recommends a daily 9.00 am call with the whole company or a department, with people taking it in turns to talk about what they are doing or the occasional guest speaker.

When planning, also make sure you have the equipment you need to do your job productively: is your laptop up to speed? Is your screen big enough? Do you need a more comfortable chair? In some cases, a small investment can make a big difference. If you are lucky, your employer may even allocate budget for home working.
3. Balance is good
Change is disconcerting, so it’s vital to maintain a balance between home and work life, and between adapting to new situations, hours and tools and relying on trusted processes. This also applies to patent work: we need to balance new invention capture with consolidating valuable established intellectual property, and of course balance what needs to be achieved with the budget that is available. In the current situation, compromise in some areas is inevitable.
4. Accept fatigue
Zoom calls, cloud computing and emails are all great, but fatigue may settle in, giving a new definition to (feeling) zoomed out. Be creative then and remember the other tools you have: as one patent attorney says, going the extra step to call or instant message someone may be a more efficient way to respond to questions, and also helps build relationships. Another adds that you may start an invention review with 20 people, but then break into separate rooms to discuss specific topics with smaller groups. Use the tool that is most appropriate for the job – and understand that technology occasionally lets all of us down, so accept it when it happens. Have a back-up plan if you can.
5. Keep things simple
It’s more important than ever to focus on simplicity in dealings with inventors: they will be finding the situation stressful and don’t need patent attorneys making it worse! Use a simple invention disclosure form, identify the right person to help with invention harvesting, and (as one patent attorney says) “try to keep the statutes out of the discussion” to become their ally – and get your outside counsel to do the same. You can also empower inventors, for example by getting them to help with disclosure by commenting on prior art.
6. Educate
Several companies emphasize the value of IP counsel providing even more training and education on patent matters these days – but think carefully about what works best for your company. For example, would it be useful to have a patent correspondent in each technology center, who can be a trusted first contact for inventors? If you can run a training session, try doing it with small groups to maximize engagement, and, as another patent attorney said, focus on practical issues and relevant case studies rather than legal theory. Invite questions and make sure you are approachable. Do what you can to show that patents are both important and fun: you could devise a short quiz, share trivia about IP law and cases, or highlight patent issues that are in the news.
7. Innovate in this new normal
Much as we might all like to think business continues as normal, the reality is some things will be different. Budgets may be constrained, some systems and habits are not available, and workflow processes may have to change. For example, does the lack of casual contact make it harder to harvest inventions? And if so how do we respond to this?

The bottomline is: our business is all about innovation, yet we may not always be innovative in the way we work. Getting the best results from all parts of the business requires new thinking about how to identify and develop innovation, and how to communicate about it to others. If you’re used to discussing ideas in a meeting with a White Board, think about how you can replicate that experience virtually. Maybe it is the right time, as one company recommended, to set up an innovation platform, where people can add comments, to cross-pollinate ideas and crowdsource innovation from across the business.

You could be surprised with the outcome of all this as several companies have actually reported a spike in invention submissions as inventors have benefited from breathing space. You may need to make more time to work with inventors to address as needed this innovation surge. After all, who will complain if inventors have more time, even if it’s not necessarily face to face time?
8. Add value
As patent practitioners, more than ever we need to focus on how we add value and how we support our colleagues. That means helping identify the commercial value in an innovation, developing the business case and being creative when it comes to filing strategies – not just going through the motions. It is probably time to use cost mitigation strategies learnt over the years. For example, should you favor foreign filings over continuations to balance the budget and if so which are the key jurisdictions? Should you file provisionals instead of new applications? Are there fees you can negotiate? If you need to scale back, how can you prune efficiently without jeopardizing the future of the portfolio?

One trend we are seeing is that inventors are increasingly asked to back up the value of an idea with a business plan, so help them to do this. As one in-house counsel says, the crisis may even present an opportunity to improve the quality of portfolios by taking a step back from the detail and engaging with inventors to build on the basic invention initially presented.
9. Trust
Remember that, despite the current challenges, good patent portfolios are resilient and build value for the long term. You may have to scale back some work, and manage costs carefully, but you can still achieve a lot: work with trusted and responsible outside counsel, focus on the long-term value and draw on all your experience to ensure your business is in good shape for the next generation.

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