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21 January 2017
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I recently came across an interesting post on PATENTLYO about a new service from France called Cloem. I'll get to what they do in a minute, but first, some background on patentability.

Disclaimer: I'm not a patent attorney and never pretend to be one (trademark lawyers are cooler anyway). But I do know enough to tell you that the major requirements for patentability are novelty and innovation. Novelty means new (throughout the world), and inventive means, even if new, not obvious to someone skilled in the particular area the invention covers.

Assuming you come up with something that is novel and inventive, in order to get your patent granted, the details of your invention get published (and as such, disclosed to anyone who wants to see them) at some point. This disclosure is in exchange for the limited-term monopoly the patent then gives you in the invention.

What your patent does or does not cover - i.e. what you are asserting is novel and inventive - are called claims. When you're inventing something in an already innovative and/or overcrowded field, your claims will tend to be quite narrow, protecting only a tiny portion of your actual invention as a whole. Also true of these overcrowded sectors, as Dennis Crouch writes at the link:

"Although you might be the first-to-file a patent application covering a particular new innovation, certain market areas are so competitive that you should expect follow-on patents from competitors that take the original idea and push it in other similar-but-different directions.  Those follow-on patents won’t block you from practicing your core invention, but they may well block you from implementing practical and important elements of a market-ready solution."

I believe this phenomenon - people piggybacking on your innovation and preventing you going in directions with it that you might otherwise have pursued, given time -  can transpire inadvertently as a result of true competitive innovation, but can also arise in a patent trolling context, particularly when we're dealing with specious software patents (like, for instance, the many patents asserting a monopoly in double-clicking!).

To address this problem, what Cloem says they can do for you is provide you with thousands of alternate, computer-generated claims, based on your actual claims, and publish these alternate claims to prevent other people encroaching on your innovation with their own similar patents.

They do this through a computer algorithm that uses your actual claims to generate thousands upon thousands of different permutations of these claims, using alternate definitions of many of the words in your claims, as well as synonyms and anonyms, and then publishing each of these alternate permutations. They figure that by doing this, they have a good statistical chance of hitting upon some actual follow-on innovations that might be claimed in future, amid all the nonsense the algorithm also generates (and Cloem concedes there is plenty of nonsense). In this sense, it sounds to me a bit like that theory that if you lock monkeys in a room with a typewriter, eventually (maybe after thousands of years) they will, quite by chance, reproduce all the works of Shakespeare.

Importantly, nothing Cloem does stops your competitors using their new follow-on innovations (unless you decide to patent some of the Cloem-generated claims), but their idea is that these "cloems" (computer-generated claims) may be just the thing to hold your competitors' patenting plans, nefarious or innocent as they may be, at bay, since their publication (presumably somewhere on the internet) arguably destroys the novelty (and therefore patentability) of these follow-on innovations.

Is this a good thing or a bad thing? I'm not entirely sure, and I think it could be a double-edged sword, with both pros and cons. In assessing the major pros and cons, I will assume their algorithm does  indeed generate some good stuff amid all the junk, although as an aside, their website is giving me a very 1997 feeling, so hopefully they have poured all the technical expertise into the back-end technical stuff.

Pro: all of this prior art i.e. the computer-generated claims published by Cloem users could provide tech-innovators with easy defences against spurious patent claims by patent trolls. The defence would go something like "your nonsense patent is nonsense and not novel, click this link...". The problem with this argument is that patent trolls are often told this anyway, even without Cloem, and because they respond with something along the lines of "let's let a court decide", people tend to capitulate to avoid the expense and heartache of a patent infringement case, even while knowing they're capitulating to nonsense.

Con: the presence of all these computer-generated claims, assuming courts accept them as prior art that destroy novelty (and that's not assured at all), could also have a cooling effect on innovation. I've written before how the power afforded by a patent is still a major force behind innovation, despite media narratives to the contrary. If you're in an industry where almost nothing you come up with is likely to be patentable because, through some dark alchemy, a computer has already come up with it, you might be less inclined to innovate in the first place. The other negative is that this tool could create a new cottage industry for trolls by allowing them to stop their competitors patenting anything by first "cloeming" left, right and centre (or threatening to do so) and then opposing all new patents in their industry based on a contention of lack of novelty.

I’d say, knowing the little I know about human nature and the ways businesses compete, Cloem is probably not a good thing. Quite apart from the theoretical problems the service may give rise to, it will also, in cluttering the internet with loads of junk, make the already difficult and gargantuan task of doing a comprehensive patentability search that much more impossible for patent practitioners.

Written by Mark Smith, Director, Ratiodex

Edited by: Creamer Media Reporter
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