The Elephant in the Room

300px-Blind

Listening to veteran Patent Attorney Heidi Brun speaking in place of Einav at the IPAA mini-conference last week on the topic of how to read a patent, I remembered the endearing analogy she used on her website whilst running her own firm, before rejoining Eitan Mehulal.  Heidi told the tale of a blind wise men encountering an elephant. One, who encountered a tusk referred to the animal as being a sharp fanged monster. One who felt the tusk described a vacuum cleaner. The one who felt the ear described a ship with a sail. Another feeling a leg, decided it was a tree, and so on.  In this traditional Hindu, Jain story, the blind men discovered they were blind.

Two of the many references to this parable are found in Tattvarthaslokavatika of Vidyanandi (9th century) and Syādvādamanjari of Ācārya Mallisena (13th century). Mallisena uses the parable to argue that immature people deny various aspects of truth; deluded by the aspects they do understand, they deny the aspects they don’t understand. “Due to extreme delusion produced on account of a partial viewpoint, the immature deny one aspect and try to establish another. This is the maxim of the blind (men) and the elephant.” Mallisena also cites the parable when noting the importance of considering all viewpoints in obtaining a full picture of reality. “It is impossible to properly understand an entity consisting of infinite properties without the method of modal description consisting of all viewpoints, since it will otherwise lead to a situation of seizing mere sprouts (i.e., a superficial, inadequate cognition), on the maxim of the blind (men) and the elephant

I was reminded of the story because in the email exchanges with in-house practitioners, examiners and freelance patent attorneys discussing the slides prior to the presentation, it was clear that everyone had a perspective heavily reflecting their personal experience.

investment

Paciderms Patents are expensive to acquire.

elephant keeper

and maintain.

Troll ivory

An investor who purchases patents once told me that he wasn’t interested in something to hang on the wall. This investor, is a non-practicing entity, otherwise known as a troll. Such a person when viewing a patent elephant, sees ivory. His interest is suing an infringer to make a quick buck.

Elephant trophy

An inventor and many companies see patents as trophies to be hung on the wall. One of my biggest clients has just put together a display wall of all their patent certificates prior to an important meeting.

blocking power

Fundamentally, a patent is an obstacle to competitors and so their blocking power is certainly an important consideration for manufacturing companies looking to gain commercial advantage.

elephant working

Patents can be put to work. To make money, one has to put one’s patents to work somehow.

babar and celeste

One doesn’t have to work the patent oneself, of course. Sometimes, one can claim royalties.

Elephant workhorse

Patents are expensive and to recoup the investment, one needs someone, somewhere, working the claimed invention. Whether that is the patentee looking to reap a bigger harvest, a licensee paying royalties to use the patent, or someone sued for infringing.

white elephant

Not all patents have value.

pink elephant

If it seems too good to be true, it probably isn’t.

elephant chess piece

Preferably patent strategy should be directed to stop competitors and to protect markets. However, sometimes outside forces affect patenting decisions. A government of other investment package having a specific budget for patenting activities will encourage patent filing. The Chinese government has invested heavily in converting Chinese firms into innovative companies and there are financial incentives to file patents. These invariably distort the decision of where and when to patent.

Patent Attorneys who draft applications in a wide range of disciplines, take pride in their quick understanding. After all, clients rarely want to pay for the attorney to learn the technology. Sometimes, however, one thinks one understands and writes up an application, and it later transpires that there is some aspect that wasn’t fully appreciated. This is sometimes because the client didn’t understand the significance at the time the application was written either. With luck, there is textual support to subsequently claim such aspects. Actually, it is not lack, but experience. One tactic for drafting focused applications is to first write the claims and then write these claims into the specification. Veteran Patent Attorney Yaakov Schatz specializes in telecommunications. He considers this common approach dangerous. The technologies he works in change very quickly. When he drafts tailors his suits patent applications, he tries to anticipate these changes, to have enough material left over , if not to hang a hat on, at least to decorate the hat to match the suit.

I am aware that Jewish fundamentalists amongst my readers might disapprove of Heidi or me using an Indian teaching from the Buddhist and Jain traditions. Indeed, similar sentiments are found in Jewish sources, where the Torah is described as being multifaceted with seventy faces, and Rabbi Sacks explains the different voices found in the Torah (identified by Wellhausen as indicating multiple authors) as necessary since reality is complex and one perspective and voice is inadequate.

Still, following Solomon’s advice, I believe in seeking knowledge wherever one may find it, and think the analogy of an elephant is particularly apt.

 

One Response to The Elephant in the Room

  1. Here is another example of what a patent is good for. When my son was ten years old he obtained a patent on a toy glider. Years later he filled out his application to college but no mention was made of the patent. When I suggested that it be included in his application, he said “Dad, it’s a silly little patent, I never made money on it, so why bother.” My paternal advice was. “True, but college admissions directors don’t know this.” so he put in “Inventor and owner of Patent No. so-and-so.” and I am pleased to report that he got into the college of this choice. (It happened to be Yale, where I went.)

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