by Robert Bell on Monday, Nov. 1, 2010 12:00 am
Arkansas may not be Silicon Valley, but there is enough research and invention coming out of the Natural State to keep a small cadre of patent attorneys busy.
"There are a number of patent lawyers here that I think are very capable, and whenever we have a conflict of interest in a case, we have no problem whatsoever sending them to another local patent firm," said Gary Speed, founder of Speed Law Firm of Little Rock, which practices patent, copyright and trademark law.
The website for the U.S. Patent & Trademark office lists 38 active patent lawyers in the state. By contrast, the Arkansas Judiciary website lists more than 3,100 attorneys just in Little Rock and North Little Rock.
In addition to passing the state bar examination, patent attorneys must pass the federal patent bar exam, which proves that they have the background necessary to draft patents.
Much of the patent work in Arkansas is related to the research being done within the University of Arkansas system, including the Fayetteville and Little Rock campuses, as well as the University of Arkansas for Medical Sciences, said Charles Dougherty, partner with Wright Lindsey & Jennings LLP of Little Rock. That work is reflected in 22 patents awarded so far in 2010 and assigned to UA, UAMS and Arkansas State University. (See list, Page 21.)
Several Arkansas patent attorneys told Arkansas Business that their caseloads were made up largely of work for campus research and businesses, as opposed to the shade-tree Edison who builds a better mousetrap and earns an early retirement from it. Several said they couldn't get specific about the patents they were currently working on because of confidentiality agreements.
"Generally, technology is more and more becoming the core of small businesses, and the people who really make money off a patent are building a business around it," Speed said. "A lot of times it deals with industrial processes or things that aren't too sexy to talk about or to look at, but it's the way people make their money in running their business."
As far as recent patent trends, nanotechnology is one of the major emerging fields, both in Arkansas and around the world, said David Pieper, principal of Keisling & Pieper PLC, a Fayetteville firm.
Both Keisling & Pieper and Wright Lindsey & Jennings have represented the UA system, which has a nanotechnology center in Little Rock. Speed, who specializes in patent, trademark and copyright litigation, represents another side to the practice and has litigated against the UA - and other large organizations - often on behalf of individual inventors. However, his partner in the firm, Kyla Aycock, does handle patent applications.
Because hunting and fishing are such big draws in the state, a number of the patented products originating from Arkansas have to do with those outdoors activities, said Blake Glasgow, a patent attorney with the Wright firm. Many of these patent holders aren't full-time inventors; they're just people who found a better way to do something.
They "experience some type of frustration with the way something works, and they say, 'It would be a lot easier if ...' and what comes after the 'if' is the invention," Glasgow said.
Of course, not everyone who comes up with a unique process or solution to a problem seeks a patent for it, Pieper said.
"When a farmer does something and figures out how to fix something, he doesn't usually start a business to go and try to profit from it. He usually moves on to the project that he's working on," Pieper said.
But some do, and several have come to Pieper's firm for guidance.
"We've got patents on everything from rock cutters to methods for reworking hay bales from round bales into square bales," he said.
Keisling & Pieper has also secured patents for such dissimilar items as candles, automotive parts, product display methods and stilts. One of the firm's clients is Marshalltown Co., an Iowa construction supply company that also has a facility in Fayetteville, and makes, among other products, drywall stilts, Pieper said.
As for Wright Lindsey & Jennings, "the tinkerer in the garage is a small part of what we do," Dougherty said. "Most of our clients are businesses or universities. But within that realm, though, we represent a pretty diverse group, everything from the startup company that's out there looking for their first hit of angel funding all the way to Fortune 500 companies."
Most of Speed's clients are businesses too.
"As far as the small inventor clients that have the latest and greatest duck call or toilet seat or whatever, those clients generally aren't our long-term clients," Speed said.
So what does a patent attorney do?
"Basically we prepare, file and prosecute applications with the United States Patent & Trademark Office," Pieper said.
But that isn't necessarily as simple as it might sound.
"A patent application is a complex document to draft," Dougherty said. "It's not a form. My practice includes trademark and copyright prosecution as well, and those are pretty easy. Those are sort of fill-in-the-blank things. But with patents, you start with a blank sheet of paper."
It helps to think about the patent process as a deal with the government, Dougherty said.
"They give you a monopoly, effectively: exclusive right for a certain period of time," he said. "But your part of that bargain is you've got to fully disclose the invention so that it's out there for everyone to use and to read and to improve upon. And you do that through the form of the patent application, so that document's got to be complete or you end up with a patent that's not going to be enforceable."
But before any of that gets under way, a good deal of research must take place.
"We have to figure out, first of all, what are you entitled to claim, based on what we know that's already out there - what patent attorneys call the prior art," Dougherty said.
"Then we have to try to draft the best claim we can to claim as much of that ground as possible within the limitations defined by the prior art. You don't want to go too far because then your claims won't be valid, but you want to get as far as you can in order to get the broadest possible patent. That's a lot of the art of what we do is dealing with how we draft claims and amend claims during the process."
Because they need a deep understanding of the process involved in a patented product, patent attorneys must sit for the patent bar exam, which is administered by the patent office at locations around the country, in addition to the state bar exam, to prove their technical mettle and be allowed to practice before the Patent & Trademark Office, Glasgow said.
Usually this calls for an undergraduate degree in one of the hard sciences. Glasgow, for instance, has an undergraduate degree in biology and a master's degree in physiology and biophysics. His specialty is biological, chemical and pharmaceutical patents.
However, a degree isn't always necessary. An attorney can still qualify to take the patent bar exam if he or she has enough science-related credit hours earned at an accredited college.
Attorneys whose undergraduate degrees are not in one of the sciences but who have practical experience in engineering or physics can qualify to take the patent bar exam by passing the Fundamentals of Engineering test, which is administered by the State Board of Engineering Examiners in each state.
Besides litigating infringement cases and drafting and submitting applications, patent attorneys also give their clients good, old-fashioned counsel, which occasionally involves a let-down.
Sometimes, would-be inventors come up with a product idea that isn't patentable or one that doesn't require a patent, Speed said.
"A lot of times, people will call and say they need a patent and what they really need is a trademark or copyright," he said. "Everyone has their big idea that they think will enable them to retire and to be wealthy. Part of our process in dealing with clients is basically to educate them about what the copyright, patent and trademark laws protect and how to best pursue their dream."
What Pieper's firm generally advises most potential patent applicants "is to take a look at what is the market for the device and what's the advantage that you hope to gain by getting a patent in terms of the breadth of the monopoly," he said.
Sometimes an idea might be patentable, but obtaining the patent might be more trouble than it's worth, Glasgow said.
"Is this going to be obsolete? Is this something you would be better off making and producing yourself without patent protection and making your money while you can?" he said. "That also comes up with individual inventors that may not have the resources to get in there and fight and be able make their product at as low a cost as a bigger manufacturer."
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