There's a fly in my soup: hand-crafted research in the age of analytics

Patent analytics is a powerful tool, and in patent research we beta test each one, using a wide variety of these engines as standard.

Analytics is still, though, just a tool and not a replacement for hand-crafted research conducted by an expert in the field of technology.

When used as a means to an end, analytics-based research leads to ‘fly in the soup’ scenarios where valid research results are sullied by inappropriately included data. This leads to the more serious question of whether appropriate data was excluded.

Hand-crafted, expert-driven research by engineers with the necessary domain knowledge and industry experience is the key to finessing the right patent universe from which to begin analysis. Starting your analysis with a very focused search can draw the most benefit out of your analytics tools and will get you more accurate and more relevant results than relying on analytics tools alone.

Automated correlation is not research

Patent analytics offers both broad and detailed views of trends and correlations which are excellent for pulling information out of an existing set of data, but has limitations in creating the initial data set.

Analytics tools are search engines based on an inference protocol that determines what belongs and what doesn’t belong in a given set. Many times the inferences made are based on blindly applied assumptions about the patent data which results in references being erroneously included or excluded—thus the ‘fly’ in a perfectly good bowl of soup.

It is the point of inference that distinguishes analytics from human-based patent research wherein key word searching (non-automated data-mining) requires careful and strategic construction of search criteria. This requires the researcher to have both domain knowledge and industry experience.

Patent research is an iterative process, including such technical considerations as analogous methods and apparatus, and considering the contextual and conceptual relevance of a given technology. Analytics tools, by nature, have neither of these. If left to create the foundational set of data, analytics tools can miss very relevant prior art. You are left with either a very narrow set of results which could exclude valid art or with an overly broad set of patents which contains too many ‘flies’.

Simulating domain knowledge can be attempted through the use of industry specific thesauri, but they are not readily available and need to be updated with every piece of research. For example, the term ‘bucket’ in turbine technology has a different meaning when used in mining technology.

Both can use the key word ‘bucket’ for completely non-analogous technologies. An analytics tool will not be able to adequately remedy this distinction and will either include or exclude references to the detriment of the patent universe being created, resulting in an increase in delay and cost to the case.

Eliminating the flies

A hand-crafted, focused set of patents, ranked by relevance, can eliminate the ‘fly in the soup’ phenomenon entirely. An expert researcher can navigate the nuances of a disclosure that are too subtle for analytics tools, while adjusting the scope of the research to meet the client’s direct needs and provide a strong set of foundational references. Irrelevant or inappropriate references are removed at the outset, thus any text-mining or manipulation of this customised data set will be highly beneficial for analysis. More time is spent scrutinising highly relevant art and constructing stronger arguments.

An extra pair of eyes

Expert-driven research also offers the benefit of a second or third pair of eyes on a given case. At Express Search, for example, researchers report to at least one supervisor who reviews the results of research in every detail, sometimes honing them and adjusting the scope and focus to address the client’s disclosure better. With a second and third pair of eyes viewing each piece of research, quality control requirements are met and questions regarding interpretation of disclosed material are brought to light for the benefit of the client.

This perspective is highly valuable given the often tight deadlines in drafting and filing. Perspective of interpretation and quality control is not something that can be filtered for in an analytics only-based search.

The best of both worlds

Expert-driven research offers a thorough and cost-effective route that can be easily used in tandem with analytics tools. Once the springboard set of foundational references is procured, dropping them into an analytics tool can yield additional useful information upon which to base opinions or arguments.

For many practitioners in the US, whether in-house or external counsel, the new AIA requirements demand a greater input of research and analysis. This is particularly true with regard to post-grant proceedings.

The cost of caution

The costs associated with hand-crafted research are far less obtrusive to overall case cost than the typical analytics subscription. For example, with Express Search, we regularly cap fees based on client budgetary requirements, offer bulk discounts and basic ordering agreements. Free amenities with research, such as integrated assignments and non-patent literature work, increase the value added significance of an expert-driven patent search in the near term.

In the long term, customisable patent research with an expert researcher and reviewer can save tremendous amounts of money and time, limit rejections and office actions, avert infringement concerns and triple damages, and help to draft strong validity arguments for a portfolio. A good landscape/whitespace search at the outset of R&D fund allocation can focus development down the most profitable and patentable avenues.

The subtleties of patent law and the clever use of language are why there is no automated patent or opinion drafting software. Likewise, it takes a trained professional to conduct a thorough and concerted patent search.

There is a cost of time and money when critical references are missed during prosecution or litigation. The use of hand-crafted patent research, with experts trained on the latest methods and tools, can help to minimise risk and maximise insight by providing foundational research and thereby eliminating ‘flies’.

Cristopher Flagg is president of Express Search. He can be contacted at: Cris.Flagg@ExpressSearch.com