Recently, there have been some posts on the PIUG wiki discussion forum pertaining to a new, micro-level claims analysis tool specifically designed for patent clearance and infringement related activities. I spoke with some of the principals at ClearstoneIP, and they have graciously offered to provide a detailed look into the Clearstone Innovator tool for readers of patinformatics.com. While discussing the system with the designers I was impressed with the novelty of their approach, and its potential value to organizations with significant patent holdings, or that otherwise perform repeated infringement analyses within a particular art. While there is certainly an initial investment in manually identifying claim elements and inputting them into the system, this exercise only needs to be done once, and will pay ongoing benefits once accomplished. The remainder of this post provides a detailed discussion of how the Clearstone Innovator system works and suggests several business critical instances where it can be applied within an organization.
Clearstone Innovator (by ClearstoneIP LLC) is an inspired patent search platform designed to address some of the most pressing challenges in patent information retrieval. At its core is a patented logic framework that allows a user to memorialize claim analysis conducted in the course of patent searching. The memorialized claim analysis forms the basis of an elimination-based (i.e., deductive) search interface for subsequent searches. The result is the minimization of duplicative analysis of patents from search to search.
This platform is particularly suited for searches premised on claim coverage, such as product-to-patent mapping and freedom to operate (FTO), as opposed to those directed to patent disclosure, such as prior art or invalidity searches. ClearstoneIP does not bill Innovator as a one-stop shop for patent searching. Rather, they consider Innovator to be resolutely directed to unraveling the mystery of memorializing FTO or infringement analysis. Users who would find Clearstone Innovator most valuable are those who manage patent portfolios, do frequent FTO investigations, maintain patent marking records, and perform activities rooted in product-to-patent mapping.
This post will discuss some of the primary uses for Clearstone Innovator and how it can be incorporated into a patent practitioner’s processes. Although Innovator is relatively new to the marketplace, its patented functions are well carried out and in-house IP specialists and practitioners should seriously consider how this platform could add value to their analytics toolkit.
Patent Infringement Monitoring:
Infringement monitoring is likely the sweet-spot of Clearstone Innovator. Innovator allows users to create a custom element hierarchy representative of concepts claimed by patents in the portfolio. A target product (e.g., a competitor’s product) is evaluated with respect to the element hierarchy. Elements of the hierarchy not embodied by the target product are selected by the user to eliminate patents, which promptly results in a much-reduced, highly relevant and focused set of potentially infringed patents that warrant detailed review. A screenshot of the Innovator Search Interface is shown below in Figure 1.
The user initiates a portfolio investigation by defining an Initial Set of patents for consideration. As shown in the interface of Figure 1, the Patent Pool pane on the left-hand side is used to generate the Initial Set. A user could generate an Initial Set in any combination of ways. For example, the user could copy and paste a list of patent documents from another location and/or query a patent database directly from the interface. In the case above, the Initial Set constitutes a copy-and-pasted list of documents. Thus, information displayed in the “Sources” window and the “Initial Set” window is identical. In other cases, the “Patent Sources” window displays an identification of the source itself, for example a description of a database query (e.g. “ccl/623/$ and an/boston”).
The user then interacts with the central (i.e., “Filter”) pane to eliminate non-relevant patents from the Initial Set. The “Filter” pane displays an Element Hierarchy previously generated and loaded by the user. As an added feature, only elements associated with patents in the Initial Set are displayed in the “Filter” pane. Users may eliminate patents from consideration by clicking on the checkboxes next to elements that are not embodied by the target product. Using patented methods and functions, and based on the associations previously made by the user in the Annotation stage, the software eliminates the patents that require the selected elements for infringement.
The “Remaining Patents” pane on the right-hand side represents a list of patents that remain after each element selection. This list will maintain a real-time display of patents that may potentially cover the target product. Once the user has selected all non-relevant elements from the Hierarchy, the Remaining Patents list will represent a narrow and focused group of potentially infringed patents that warrant further analysis.
Innovator enables the user to arrive at this very narrow set of potentially infringed patents within minutes, whereas such a task could have taken days, weeks, or longer using conventional means. Since the initial investment of patent annotation to create the Element Hierarchy only needs to happen once, the efficiencies only increase over time.
Freedom to Operate:
Conventionally, FTO searches are expensive, time consuming, and of mixed quality as a result of their open-endedness. Innovator provides a paradigm-shifting platform to conduct FTO searches more reliably, more cheaply, and quicker.
An FTO investigation could be conducted in like manner to the portfolio monitoring operation described above. Specifically, instead of designating your portfolio as the Initial Set, you would designate the Initial Set to be a competitor’s portfolio or a broad collection of active patents in your industry. And, of course, instead of the target product being a competitor’s product, you would consider your own product.
Patent Marking:
Conventionally, determining which patents should be marked to which products requires an iterative approach and is thus a daunting task for most companies. However, using Innovator, a patent marking analysis could also be conducted in like manner to the portfolio monitoring operation described above. Specifically, maintain the Initial Set as your patent portfolio. However, instead of using a competitor product as the target product, use your own product. The result is a quick and reliable means for locating which patents should be marked on a given product.
Product Variation FTO Analysis:
Another difficulty is providing FTO guidance while a product evolves. Conventionally, a searcher is generally unable to recall why each patent of a past search was included or excluded. So, a variation in a product, even if slight, often requires a fresh, new search.
However, Innovator has a unique ability to handle variations in a product with finesse. After conducting an FTO analysis as described above, the user may save the element selection record so that it can be re-used at a later time. To conduct a search on a variation of a product already cleared, the user may load the saved selection record. Once the selection record is loaded, the user need only modify the selections to reflect the changes in the product. Notably, when conducting a variation search, a new “Differenced Output Set” window is displayed as shown below in Figure 2 (in addition to the customary “Completed Output Set” window). This window displays patents that are at issue solely due to the variation in the product (or proposed incorporation of a new technological element). So, using Innovator, the user may uniquely and reliably determine which patents become issues solely due to a product variation. Of course, the user will want to review all resulting patents. However, quickly and reliably presenting those newly relevant patents to the user could prove invaluable.
Memorializing Claim Analysis and the Element Hierarchy:
The software’s “Annotation Mode” is where the brains of platform reside. ClearstoneIP has embedded complex logic and patented functionality into this interface to make the patent entry process intuitive and painless. The company claims that users should be able to enter and annotate the average patent in 15 minutes or less, which means that a patent portfolio of around 250 patents can be memorialized in the system in less than 2 weeks.
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The annotation process may at first seem confusing, but this is primarily because ClearstoneIP wants to get the patent analytics industry on board with a completely new logic scheme and approach, which requires new ways of thinking. At times the processes seem counter-intuitive, but soon enough the logic will click and the inter-related aspects of the platform will make complete sense.
The process for annotating a patent in Innovator comprises the following three steps:
Practitioners are already carrying out step 1 as part of their work in analyzing patent claims and the like.
Notably, the annotator need not correlate a particular element to a patent if there is any uncertainty as to that element’s meaning, scope, or legal effect. Recall that in “Searcher Mode,” by the nature of the software, elements may only serve to exclude patents from final results, not include them. So, if the annotator chooses not to associate a particular ambiguous element with a patent, that element simply will not be a basis to exclude the patent (but other, unambiguous elements may be a basis) and, if not excluded for other reasons, the patent will be included in the final results. This inherent characteristic of Innovator’s logic scheme provides a reliable back-stop to natural ambiguity in claim analysis.
This characteristic is part of what makes Innovator viable. The annotator need not blur the meaning of elements or force a patent into an element in which it does not truly belong. The searcher simply needs to ask “Do I believe with confidence that this element is required for infringement?” If yes, then apply the element. If no, then do not apply the element.
Step 2 is a simple matter of editing and reconciliation. If an extracted element had not been added to the hierarchy, then you simply find an appropriate place for it and insert it using the “Element Input” feature. Another option is when an element exists in the hierarchy that is similar to the extracted element you wish to add, but does not technically cover it (i.e., it is slightly narrower in scope). One way to deal with this is to reconcile the elements by broadening the title and/or description of the existing element so that it is broad enough to include the new element. Numerous hierarchy editing features are incorporated so that users can customize and rearrange the hierarchy as they see fit, and as the universe of memorialized patents grows. The software maintains appropriate correlations of patent claims to the elements in the hierarchy, even if they are later modified. Thus, Innovator is designed to evolve as the user works through a patent database.
In step 3, a dedicated patent input function facilitates the correlation of elements from the hierarchy to the independent claims of the patent being annotated, as shown below in Figure 4.
The platform respects and soundly takes account of the relationships between the various claims of a given patent by requiring separate annotation for each independent claim. It does this because independent claims within a single patent can have different scopes, and clearing one does not necessarily mean you have cleared another. For example, if a patent includes (as its only independent claims) a first independent claim that requires element “A” and a second independent claim that requires element “B,” in the “Searcher Mode,” the software will eliminate the patent only if the user selects both “A” and “B.”
Dependent claims need not be considered because, by definition, they are narrower than (and include all limitations of their respective) independent claims. Thus, they cannot be infringed without infringing their respective independent claims.
ClearstoneIP’s ambitious Innovator platform will certainly raise some eyebrows. It represents a significant departure from existing tools and a complete re-thinking of patent claims analysis. By all accounts, the underlying logic enabling this new thought is sound and ground-breaking. While some users may be hesitant to make the up-front investment of patent annotation, ClearstoneIP is betting that the increases in search efficiency far outweigh this initial investment, especially considering that it is just a slight extension of the analytical and clearance efforts that practitioners are already making and repeating. The company also offers services to help users develop their element hierarchy and annotation workspaces.
