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My Roof Leak and Your Patent Application

myRoofLeaked

Our office suite is on the top floor of our building, and a couple of weeks ago we had a day-long string of heavy summer thunderstorms. Early in the afternoon, the drip drip drip seemed to be a little bit louder than usual, and I turned around to find water running down from my ceiling creating a bubble on my wall. That was just the start of the problems, because it also affected the network fixture in that wall which in turn kept my office from connecting to our wired ethernet network for a day and a half.

Tracking the leak backwards was an interesting exercise. In my office, the leak appeared next to a window on an exterior wall. Neither my wall nor my window, however, were the problem. Instead, the repairman needed to go to the top of the building to explore and locate the problem.

It turns out that the roof of our building is formed of a metal decking, covered with some concrete, and then covered with some loose stone. From a leak standpoint, the presence of the metal deck allows water from one leaking location to travel laterally along the deck until it finds a low point–all unseen.

Eventually, the roof guys located a hole drilled in the concrete above the metal decking about 30 feet away from my office. The hole had been placed there by a heating and air-conditioning crew who had carried out work on that system a few weeks earlier. Of course, when the HVAC folks finished (leaving the hole behind), the roof’s appearance was just fine. Nevertheless, by creating a hole away from my office, and then failing to repair it, a hidden problem was created that eventually demonstrated itself visibly and disruptively in my particular office.

What in the world has that got to do with your patent application?

In reality, in order to produce a patent with value beyond its cost, the underlying patent application needs to be written and then prosecuted as the first document in an infringement lawsuit. A commodity view of drafting and prosecution, poor judgment, or flat out errors, made either during drafting or during prosecution will, like the hole in my roof, come back to haunt the patentee unexpectedly. Such errors may be “invisible,” however, in the written application or even the issued patent, but your opponent will eventually find the leak.

Stated differently, even the best practitioner can’t read the future, and in a practical sense an opponent will always attack a patent from whatever point is weakest, even if the weak points are relatively strong. Don’t exacerbate the problem by skimping on the preparation or prosecution of your patents. If cost is a factor, think about fewer patents well done rather than more patents that have holes in their roof.