Surface Phenomena

I’m going to reveal a practice tip that I had been keeping to myself for the past thirty years of patent practice.  The practice tip is to be alert to the possibility that some important thing about a client’s invention may turn on “surface phenomena”.  My main point being that as far as I can tell, nobody actually knows how most surface phenomena work, and so you can use the phrase in some client/inventor discussions, and the client/inventor will think you are very smart regardless of whether you are actually very smart.

Here’s how it can work.

You are sitting in a conference room with three or four PhD inventors from the client.  Maybe they are wearing white lab coats.  They are at the white board sketching things and explaining their latest invention.  The invention can be on almost any subject.  Battery electrodes.  Sensors.  Adhesives.  Tooth whitening gel strips.  Almost anything. The setup might be that some reaction rate turns out to be slower or faster than was thought, or that some new goo turns out to do something better than the previous goo.

And anyway so the inventors get to some point in the explanation of the invention where they get stuck and they say “well, we don’t actually know how this part of it works.”  Or, “we don’t actually know why this goo works better than the old goo.”  Or, “we don’t actually know the mechanism of action for this result.”  And then there is a brief pause in the discussion because nobody knows quite what to say next.

At which point, here is how you can make use of my practice tip.

You lean back slightly, clear your throat, and look at the inventors, directly into their eyes, adopting whatever your personal facial expression is when you think you are being wise or profound.  And you say, sort of apologetically:

I suppose it’s a matter of surface phenomena, right?

Here is what I can absolutely guarantee.  The PhDs will all stop what they are doing, and they will look at you in amazement.   They will look at each other in amazement, and then they will look back at you in amazement.  One of the PhDs, probably the most senior PhD in the room, will say to you, “Well, yes, that is exactly what we have been saying to each other about this for months now.  It’s just got to be a matter of surface phenomena.  We wish we understood it but we do not yet understand it, but yes there’s no question that what we are talking about is surface phenomena.”

And then the conversation moves on, there is more writing on the white board, and eventually the meeting reaches its conclusion.  But each of the PhDs has now made a mental note that you are the smartest patent practitioner they have ever met.

Now I have to warn you only get to use this trick about once per year, and you never get to use this trick twice with the same group of inventors.

But if you use it very judiciously, and at just the right moment, you can earn enormous cred with your inventors.

What makes this work is that there really is this thing called “surface phenomena” (wikipedia article).  Conveniently, it is a well established category but with extremely fuzzy boundaries, taking in all sorts of things that happen at the interface of two phases, including solid–liquid interfaces, solid–gas interfaces, solid–vacuum interfaces, and liquid–gas interfaces.  A scientist won the Nobel prize in chemistry in 2007 for managing to figure out something in some super narrow sub-topic of this far-ranging discipline.

Most conveniently, this line of inquiry is chock full of sub-areas where to this day nobody understands why this works or why that works.  I say “conveniently” because this is what makes it that the patent practitioner can lean back in his or her chair, surrounded by people who actually know what they are talking about, and the patent practitioner can hazard a guess that “surface phenomena” might be involved, with absolutely no risk of being thought to be mistaken about it!

If you make successful use of this trick, I’ll be grateful if you can post a comment below.

9 Replies to “Surface Phenomena”

  1. This reminds me of some advice received from a senior patent practitioner that you don’t need to understand why something works to be patentable.

  2. @james harris
    Why? It’s not lying. By experience, specialized inventors (not your garden variety guy who invents a new can opener in his basement) can look down at patent practitioners. They don’t really understand where we fit in the whole scheme of things. I have had a candid researcher who basically told me that in almost these exact words. We don’t do research and development as they do, but they don’t understand that we often have a very broad science and technology base as we have been in contact with thousands of inventions in our life (through our clients, but also related prior art).. Our job is to understand what took them often years to achieve in a few hours. They don’t understand that this is our job and that we are (hopefully) good at it. As such, they may hesitate to communicate all the subtleties of their invention, thinking that we are not equipped to handle them. If you can convey to your inventor that he can get into the subtleties of his work and that you will understand him, you are actually doing a good service to your client (who may not be the inventor…). From the psychological point of view, once the inventor considers you as one of his peers, communication with him will surely improve on all aspects.

    Anyways, I could go on rambling, but I have used a similar approach when possible with my inventors. One trick is to reformulate what they just said but more formally or generalized. There is nothing like having someone using a dipole approximation in his work and telling him if he thought of using the quadrupole moment, especially if he never said the word dipole in the conversation. It shows that you understand the inventor, and can give you ideas about your claim 1. Another one, if it’s true, is to convey that you worked on a similar problem while you were studying, even if it was only a class project. The list is endless. Once your inventor understands that you can really understand his work, things go much smoother. If the inventor is the one paying for the patent, you have a client for life.

  3. In “Surely You’re Joking Mr Feynman” there are a couple stories like this. The one that comes to mind is that Feynman has been called in to review some design for some water cooled machine. At the beginning of the day, he doesn’t even know that a box with an X in it is a valve. After a half hour, they’re talking about fault tolerance and redundancy. Feynman points to a valve and says “So suppose this one sticks shut. What then?” He has no idea. After hemming and hawing, the engineers say “Oops that one doesn’t have a fault backup.”

    In inventor interviews, I tell my inventors to prep as if they were giving a formal talk. Then I let them talk, with as little interruption as I can manage. But then at the end — questions. And I find that the dumbest questions get the most important answers.

    But this is a GREAT tip. I will think about something applicable to my field — “How do you handle race conditions?” “Are there any exponential processes that have to be constrained?”

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