Agile patenting?

For reasons not related to patent prosecution, Agile Software Development has been in the news recently. The discussion has been extensive and vigorous. The Agile approach is summed up by a manifesto:

Individuals and interactions over processes and tools

Working software over comprehensive documentation

Customer collaboration over contract negotiation

Responding to change over following a plan

That is, while there is value in the items on the right, we value the items on the left more.

Whether Agile is the answer to what ails any given software project, or software projects in general, is not a question for a patent attorney- or at least this patent attorney - to answer. Nevertheless, Agile concepts certainly provide an important counterweight to a process and tool driven approach to software development.

Do Agile principles matter for patent prosecution? Yes and no.

No, first of all, because patents are not software. Patents can be valuable business assets, but they do not impact the operational aspects of a typical business in the way software does. The failure to obtain the right patent may leave a business vulnerable to competitors, but the failure to have the right software can cripple the day-to-day operations of a company.

No, even more importantly, because the process matters for patents by law. A patent applicant could value people over processes and therefore not comply with the Patent Office’s rules when inconvenient to the people involved with the application. The result would be no patent at all, an invalid patent, or an unenforceable patent.

Yes, however, because Agile principles merit consideration by patent professionals even if the patent system prevents full-scale implementation of those principles:

  • If ever there was a legal system that prioritized processes over individuals, it is the patent system; though there are valid reasons for the existing patent processes, anything that we can do to focus on the individual inventors and businesspeople navigating that system will make us patent professionals more valuable, and the results of our effort a higher quality in the eyes of our clients.
  • A ‘working’ patent must meet the legal standards of the patent system, which is non-optional for us; on the other hand, particularly with the advent of a first-to-file system, an adequately working patent filed promptly may be far superior to a ‘comprehensive’ patent filed too late.
  • Collaborating with the inventors and businesses we represent has always been the key to delivering valuable patent services; anything that reminds us that patents exist to serve the interests of our clients is a good thing.
  • The long time frames of the patent system require some kind of plan, but the long time frames also make change inevitable; over the approximately twenty years a patent application is pending and then in force as an issued patent, the technological, the business, and even the legal landscape will change, and patent attorneys must respond to those changes.

Agile principles are certainly no panacea for every ailment of the patent system, but applying them where we can will make the system work better for all involved.

Notes:

A quick internet search reveals that at least one other patent attorney has been thinking about the application of Agile principles to patent processes. While FreeState Patent Services has not worked with Mr. Goldstein or his firm and cannot speak to his implementation of the concept, we certainly do not claim to be the first patent firm to contemplate the application of Agile principles to the patent process.

This post and my own keen appreciation of Agile Software Development and how those principles can be applied outside of the software world owes a debt of gratitude to Brett Gibson (no relation) and his willingness to share his knowledge and experience with a patent geek.