Emily Wearmouth: Hello and welcome to the Security Visionaries Podcast, a place where we bring experts together to talk about all things data, cyber, and innovation. Today we're gonna talk innovation specifically because we have an episode all about patents. I'm your host, Emily Wearmouth, let me introduce my guests. Suzanne Oliver is our intellectual property expert today, she works in private practice as an IP strategist and a lawyer at Scintilla. She used to run the IP department at Arm, and she also represents a number of IP bodies and associations at a government level. Suzanne joined us back in September and you may remember hearing her talk all about AI and that clearly we didn't scare her off because she's agreed to come back on and talk patents today. Welcome, Suzanne.
Suzanne Oliver: Thank you. Happy to be back. Thanks, Emily.
Emily Wearmouth: Anyone who knows my second guest would tell you that he's a hot contender for the nicest man in Tech award, but that's not all that he brings to the party. Krishna Narayanaswamy is the co-founder and CTO of Netskope, and he's currently celebrating in his inimitable and modest manner being awarded his 100th patent, which I think we can all agree is a quite phenomenal achievement. I was fortunate enough to be sat next to Krishna at an International Women's Day lunch recently, and he had some really interesting things to say about patents and his patent journeys. So I thought I'd invite him onto the podcast. Welcome Krishna.
Krishna Narayanaswamy: Thank you Emily. Thank you for having me here.
Emily Wearmouth: We're gonna start with sort of an obvious one, and I'm gonna ask it to you, Suzanne. What exactly is a patent and why do we always talk about US patent offices? Are there any others?
Suzanne Oliver: Yeah. Fundamental question. Thank you, Emily. So a patent at the end of the day is a document, it's a technical document. Patents have to be technical, it has to be... It has to have a description that allows someone else to carry out the invention, to make the invention. And I'll come back to that point in just a second as to why that's important. And at the end of this document, if you look at one, there's some sort of legalese that describes the invention itself. So an invention could be a new car horn, but you have to describe how that car horn works in relation to a car. So the technical description part might be bigger and broader than the invention for which you are claiming at the end. And that's why you get a patent attorney involved quite a lot because those claims at the end describing the invention are a little tricky to write. But fundamentally, it's actually a contract between you and the government which owns the intellectual property office or runs the intellectual property office at which you apply for your patent. And it's a contract between you and them that says you get protection for your invention for 20 years in return for disclosing the invention to further innovation. So you can do research on your invention, but you can't put it into practice.
Suzanne Oliver: And so it's aimed at not only allowing the furthering of innovation, but also to allow you as the patent owner to get what's called a monopoly on your innovation in return for your R&D investment, basically. So that's sort of two aspects of a patent. As I've mentioned and as we've mentioned, you apply for a patent at an intellectual property office. The US is a big one, it's the one that most people think about, but we actually have one here in the UK, we call it the IPO. There's one in China, there's one in India, there's one in every sort of stable system country in the world you can think of which there's at least 140 different...
Emily Wearmouth: Wow.
Suzanne Oliver: Intellectual property offices around the world. Yes, yes.
Emily Wearmouth: And do people tend to apply for a patent at all of those offices or do they pick one and hope it covers them in other markets? How does that work?
Suzanne Oliver: Well a patent only covers you in the country in which you've obtained the patent and but it also covers you for import into that country as well. So they've got slightly broader protection. The normal rule of thumb is to get patents where you are marketing and also where you're manufacturing as well, but within your budget typically. And so people tend to go for countries which have the highest GDP as such, then you're protecting the highest markets. And so you're looking at typical choices around Europe, which has a single patent system, which covers the whole of Europe. Europe is a broader term than the European Union not to get confused, so the UK is still in the European system, even though we have left Europe as a union. US we're talking about, China was another big one, Japan used to be a really big one, but since the Japanese economy kind of faltered a few years ago, that has declined a little bit more in favor of China. India was up and coming as well as Brazil and Mexico, but we file them all over. In Taiwan, Australia, New Zealand, Canada are all popular choices because you can file the patent in English and the system is very similar to the UK system.
Suzanne Oliver: Krishna, where are all of your patents filed?
Krishna Narayanaswamy: Yeah, so I can definitely share. As Netskope what we have done is we always start with the US, because that's the biggest market. And we also follow this patent cooperation treaty, it's called PCT in short, where we can file an international application and get the benefit of the date in which we file for the US patent. And then once we do that we have the choice of going to specific jurisdictions, right? Like what Suzanne said and we I think I concur with what Suzanne said. Like in Europe, we look at Germany, France, UK as big economies where we have exerted our patents. And in Asia Pacific, unlike... For us Japan is still a very big market and so we have filed for certain specific patents in Japan. But internationally, we pick strategic patents. Again, there's a balance between cost of patenting versus what we wanna protect, right? So it's not that every patent that we apply in the US gets applied for externally. So that's the strategy at Netskope as well as in my previous employers as well.
Emily Wearmouth: So this might be a bit of a naive question. If you are filing for a patent in the US, China and you are detailing how your invention works, what is to stop someone in a market where you haven't secured the patent, taking that idea and making the most of it? So it has seems to have clear downsides for being very explicit about what you've conceived of as much as there is upside.
Suzanne Oliver: You're quite right. That's how it works. And so, for example, in this case, let's just choose Brazil randomly. If Netskope didn't get a patent in Brazil and someone implemented the invention there, they would be fine to do that. What they can't do is then take that, say if it was a product, a thing, they can't then import that into a country in which Netskope had patent protection. And that's why it's jurisdictional. But as Krishna mentioned, there are mechanisms by which you can reduce the cost, the PCT system is a really good example of that. A lot of my clients use it, it covers over 130 countries, I think at last count, and it just gives you up to 30 months extra time to make a decision where you're going to file. You can have a central examination process there as well, which is really useful, and then that speeds up the sort of grant process in other countries. But that's why your filing strategy is a strategic choice and I think Krishna hinted a very common one, which is to overlay different filing plans with different patents to get a sort of broader spread. That's quite common in products that we call our complex products that have multiple components in them, like electronic products or software products where each product then has multiple patents for different components.
Suzanne Oliver: And you layer those patents to create a broader coverage. Whereas, for example, a drug patent, a biopharma patent, one patent, one drug, they tend to be singular. You only get one patent on that drug and therefore you see a lot broader filing protection on a singular patent. But it's a different product, different market strategy, different IP strategy.
Emily Wearmouth: So when you are patenting something, are you patenting a technology, something you can build or something that you can specifically code, or can you patent ideas or processes? Where are the limitations of where patents can play?
Krishna Narayanaswamy: Generally it is any idea that could potentially be exerted in a product or any kind of gadget that you build. And for software, usually we do like method patents and system patents, because those are the ones that we can exert in our product. So generally when we look at Netskope, it's not only what we are building, but even if we have some ideas of things that we could potentially build in the future, we want to protect those ideas. So yeah, it is much broader than just technology that we're bringing out in products.
Suzanne Oliver: Yeah, for sure. There are things you can't patent, for example, software generally, but there are areas of software that can be patented. There is a requirement that you have to be able to put it into practice at the point you file the application. So you can have a sort of reasonable understanding of how it would work, but you can be held to that. In the UK patent office, I had a client that was trying to patent a perpetual motion machine by another title and the GB patent office said, "We think this is a perpetual motion machine, so you're gonna have to come and prove your invention works for us to be able to accept your patent." It's rare, very rare, but you do need to file evidence and test results and, but you can file that later. Things like ideas other forms of IP like copyright you can use to protect that. So like an idea for a novel or an idea for a cookbook or something like that. But patents generally have to be technical, is the fundamental.
Emily Wearmouth: This might be an urban myth, but I remember being told that if you put your idea in an envelope and posted it to yourself and it had a dated postmark and the envelope was unopened, that that had some legal sway over copyright and patents and is that a nonsense?
Suzanne Oliver: It wasn't a nonsense at the time, it's not an urban myth. Nowadays with the advent of digital tech, you've got date stamping on files, you've got email chains that you can use for evidence, but it really comes back to the evidence of ownership. Say if there's a dispute or if there's a contract breach or disclosure for example, people would then be able to say that it was their idea. But yeah, that was something as I came into practice years ago, [chuckle] that was still being done a little bit, but we did have early stage email and digital systems then, but that really was from before that.
Emily Wearmouth: Okay, I'll stop posting all my late night ideas.
Krishna Narayanaswamy: But does it change... I had a question for Suzanne. Does it change with the first to file? At least I know in the US now we are moved to first to file, right? So whoever files first gets the advantage of filing for the patent. Is that right? Yeah.
Suzanne Oliver: Yeah, absolutely, yeah, that's correct. So in the US it was the first to invent and so you had to prove, sometimes you'd be called to prove who was the first inventor. Nowadays it is first file. So yeah, that was probably more important around for the first to invent. But also I think it was far more important around copyright, if people were showing early manuscripts of books to publishers and there was no digital record of that manuscript then it was difficult if the publisher then stole the book idea or was accused of stealing the book idea, then at least you could prove that you wrote the book first. So it did tend to be more important for copyright purposes than patents. But yeah, US system has fallen into line with the rest of the world for first file system as opposed to first to invent.
Emily Wearmouth: How do you decide what to patent? Because I have an awful lot of brilliant ideas I must confess, and which ones should I prioritize? Which ones should I come to you and say, help me, this is the best idea and we need to lock it in?
Krishna Narayanaswamy: In the companies I've worked for including Netskope, obviously we look for the novelty of the idea in the sense that there's no prior at. Obviously that's one of the biggest check marks to ensure that this is something that can be patented. But also what we look for is detectability, which we pay a lot of attention, because ultimately the reason for patenting is to detect that somebody else is infringing on the patent, that is one of the main reasons I should say. And so if this is something that is not easily detectable from a black box, obviously, when you look at software, you cannot go and file a patent suit against somebody where you don't have access to the software. You have to look at the behavior of the system externally and make the decision. So detectability becomes very important. So internally we have kind of a rubric system, where we grade or give marks to a particular idea to see whether it meets the bar to be patented or not. And interestingly in software there are a lot of very interesting novel ideas that are buried inside the product that will never show up outside, and it's a fine balance there to decide do we want to patent that, because we cannot detect it.
Krishna Narayanaswamy: And once you patented it as Suzanne mentioned earlier it becomes public knowledge so somebody else could use it and yeah what's the point, right? So there are many cases where engineers have brilliant ideas, right? But is it better to be a trade secret as opposed to being patented, is a decision we got to make. I don't know if Suzanne has other thoughts to add to that.
Suzanne Oliver: Yeah, I do. I have a scoring system I developed when I was in-house at Arm that we use that gives a sort of non-emotional assessment. Inventors can get quite passionate about their ideas, which is totally correct and absolute. But just as Krishna said, it's not really a test of academic brilliance, it's a test of commercial viability of that patent in your portfolio, what is it doing for you. And back to monopoly point I made earlier, they're really there for you to stop someone else from doing what you're doing, they're not needed for you to put on the market what you're doing. So big corporations have these scoring systems but if you're an individual that came to me, for example, and you had an idea, the first thing I'd ask is, "Well, how are you gonna commercialize that idea? How are you gonna bring it to market? Do you need a patent? Do you need a patent now?" For example, back to Krishna's point, quite a few things, it's gonna take quite a while for someone to work out what you're doing, maybe get some investment or grants and develop the technical area and then patent when you really have a good idea that actually it's gonna be commercially viable to you and it's worth spending the money.
Suzanne Oliver: 'Cause they're not inexpensive things. But sometimes as well you do want those patents to bolster your portfolio maybe for investment purposes or because you're going to exit and be bought out by someone. And there actually can be demonstrations of the technical competence, so whilst I just said actually it's not an indication of academic brilliance, sometimes you might just wanna skew that scoring system to maybe patent a few more things than you would normally. Because it's a strategic value to you at that point in your company growth. So every scoring system and every strategy I think is very company specific, but certainly you should recognize the pros and cons of patenting including the cost to be honest with you before making that decision.
Emily Wearmouth: You've hinted at cost a couple of times, is this a really expensive process and also does it take a long time?
Suzanne Oliver: It can be seen as expensive, it can get expensive. I think what, how I would flip it is to look at the value that it's providing to a business as an investment. So a patent as is other IP is an intangible asset so it can go on the bottom line as its own asset class. So therefore, if you're buying or selling a business, it has a value, it can have a value more than the investment you put in to get it through to grant. So if a client comes to me and is worried about cost, then I try to work with them to see what we can do first, but also really try and make it clear that strategic patenting can pay off, just like strategic investments in any description in property can pay off. At the end of the day, it's then balancing that with actually getting the product to market, if you're getting too many patents, paying for too many patents, but you don't get your product to market 'cause you didn't invest in that enough then you've put your investments in the wrong place. But yeah, I don't know if Krishna has a view on that.
Krishna Narayanaswamy: Yeah. So definitely for us at Netskope, we have viewed it as a very strategic asset. So we have been, I would say, on the aggressive side in terms of building up the patent portfolio. And so over the years, right now, I think Netskope has close to 150 patents and that shows that in the 12 years we have been there, we have put a lot of emphasis in trying to apply and get as many patents as we can. And it becomes a big asset for us as we build the company, that whole intellectual property.
Emily Wearmouth: Sometimes you see news about companies selling off patents, perhaps they are patents they hold that are no longer strategic to the direction of the business. How does that work is there an eBay for patents, where do I go and buy a patent?
Suzanne Oliver: Yeah there are organizations, there are platforms, there are vendors out there who buy and sell. There's not an eBay per se, but there are agencies.
Emily Wearmouth: I'm gonna patent the idea for the eBay for patents, just so that we all know.
Suzanne Oliver: Well, as we said, it has to be novel and inventive over eBay. So yeah.
Emily Wearmouth: Oh, no. [laughter]
Suzanne Oliver: There are, we call them transactions in IP that you can mortgage a patent, you can get a loan on a patent.
Emily Wearmouth: Wow.
Suzanne Oliver: You can buy and sell a patent. It is a piece of property. It's an intangible asset. So it's not, you know, a physical piece of property like a piece of land or a house. But in terms of many of the mechanisms that you can employ around a physical asset, you can employ around a patent. So they depreciate over time, the value. So if you are valuing a patent, there's an instantaneous market value. There's about 13 different methods to value a patent. But then once it's been valued, you do need to depreciate it. Like I said, you can license it, buy, sell, mortgage.
Krishna Narayanaswamy: So, I can just add to that, during the course of the 12 years at Netskope, we have acquired companies. So one of the things we do look for is what important patent portfolios they have, because we see that as an asset. So as part of the transaction, those patents get assigned to Netskope. And so we start owning them, right? So that's the mode of buying, selling or buying from this side of the fence that we have done. Yeah.
Emily Wearmouth: So one of my favorite memories from my career was walking up what I can best describe as a Harry Potter type staircase in the royal courts of justice in London, because I was sitting in the public gallery and spectating over a patent troll case. And it was before the judge where a large company that had been marketing and selling its technology was being attacked by a company I'd never heard of, who said that they were using their patent. It was an absolutely fascinating experience. Can you explain for the listener what I'm talking about when I say patent troll?
Suzanne Oliver: Yeah, I can. So in the profession, we prefer the term non-practicing entity, just because I actually understand the flip side of the argument, which I'll come to in a minute. But basically a troll is a non-practicing entity. A non-practicing entity is a company that don't put products on the market. They just hold patents and then they assert those patents. Their income stream is basically to go around and sue people under those patents. And either go to court if they get that far or through mediation come to some agreement of payment terms. So that's the model, which obviously if you're subject to NPE or troll activity can be quite distracting for the business. It can be distracting at management level in terms of time within the legal department. But obviously if you end up having to pay, it can be financially difficult as well. From the flip side, from the NPE perspective, and there's different sort of shades of NPE in terms of good practice to bad practice.
Suzanne Oliver: But generally speaking, when you hear them speak at peak conferences around the world, which they do, they are claiming basically to be carrying out that contract, which we talked about earlier, which is that, for the investment that's been put in by the original patent owner to get return on that investment and by using that monopoly to stop others from putting on the market technology, which falls under the patent claims. So they will buy patents, for example, off failing businesses or individual inventors that didn't manage to bring product to the market. And they're just trying to extract fair compensation for the fact that the earlier applicant with the earlier patent developed the technology and everyone else is effectively built on that later on, whether you knew that a patent was there originally or not, as the case may be. So there are two sides to the story, but I think for most people who are at the receiving end of NPE activity, it can feel very unfair that just because an applicant has not managed to get their technology commercially to market, then they're now falling back on patents and leveraging the patent system to obtain some payment. And as I said, there are good and bad actors in the market in that respect.
Emily Wearmouth: That was certainly the way it was presented. The case I was observing. It was this idea that it isn't just the idea, the idea is the starting point, but it's the investment in sales and marketing and all of the work that goes around it that was what created the value that this NPE was trying to cash in on. Krishna, what's your perspective? What does it feel like as an inventor to see these people walking around and potentially eyeing up your engineering work and their own patent estate?
Krishna Narayanaswamy: Yeah, so I've definitely been on the receiving side of this activity throughout my career in various companies. Being on the receiving side, it does feel unfair, especially given the fact that you're not practicing the invention. You're kind of stymieing the innovation that you're trying to do by coming in and causing this distraction, right? What we have seen is sometimes these NPEs tend to cast a wide net. There have been cases where we have been brought into suite by these NPEs where there's no relationship with the original patent and what we are doing, right? There might be some very fringe areas of intersection. So in those cases, we have successfully fought by laying out exactly what we do and why we don't infringe. And in some cases, in my experience, they've also shown prior art that the original patent itself is not valid and we have been successful in invalidating. And that gives a good feeling that at least it stops them and puts the brakes on them, right? But definitely on the receiving side, it feels unfair, given the fact they are not practicing. If they are practicing, then it's a different case, right? Then there is some fairness to it. And yeah, so that's been my experience.
Emily Wearmouth: Krishna, you said something when we were talking at lunch about crowdsourcing for prior art. Can you explain what you meant by that?
Krishna Narayanaswamy: Yeah. So one of the things that I've seen happen in the industry is because the activity of NPEs is pretty rampant, so the companies that are developing technology and bringing to market want to band together against these non-practicing entities. So there are some innovative ways in which people can pool patents together and use that if any one of the member companies that pool together are getting sued. But a recent one that I thought was interesting was just like how you have bug bounty. Hey, you go at my software, find bugs, and if you find bugs and disclose it to me, I give you a bounty. I saw a similar kind of approach for these patent suites where the company has put out a public appeal to look for prior art, and they call out the patent numbers that they're getting sued against. And so if anybody comes up with prior art that is meaningful and that can be used, they get a bounty for that. So I thought that was a pretty innovative way of addressing this problem.
Emily Wearmouth: It is. It's definitely very innovative. All right. I've got a couple of questions I want to ask you both about how you work with your teams or, Suzanne, your clients' teams to help encourage team members to go about considering patents and the work that they're doing as part of a patent process. Krishna, what do you do? How do you talk about patents with your team? How do you decide whose name gets to be on the patent? What's your approach?
Krishna Narayanaswamy: We highly encourage our teams, as they're working on their projects, building products, to see if there are opportunities where things are novel and are different from what has been done before and to bring those forward. So within Netskope and even some of the other companies I've worked for, we have a process where you can file what is called an invention disclosure. We have a template form for that. And so people fill out, there are customary questions on that, like what is the invention about? Why do you think it's novel? And what are the other ways of solving this problem to prove the novelty and so on, which gets reviewed, and then we make a decision. So now in order to encourage, we also have some other incentives we give for inventors.
Krishna Narayanaswamy: So whenever somebody files an invention disclosure and it gets selected for application for a patent, there's always a monetary award. And we say, please put the names of anybody who has contributed to that invention. Because normally in an engineering environment, it's all teamwork. And so you tend to get the good ideas when you brainstorm, right? You may have an idea, but then you bounce it off some other people. So we encourage that, to get all the people who are involved in developing the concept to be named in the patent. But sometimes because of the monetary award, we see many names being added to patents, but what we have done is we have capped the monetary award and said, hey, whoever contributed has to be acknowledged, but then the total amount is going to be divided by those things, by those number of people, right? So that is the kind of, the speed bump you put so that people just don't throw everybody's name.
Emily Wearmouth: Suzanne, is there an advantage or a disadvantage of having a lot of names on a patent?
Suzanne Oliver: Other than having to divide down the bonus, which was a very similar system to what we used for similar reasons, I think for me, if I was trying to attack that patent, for example, then I'd be questioning how you can have so many people contribute to the invention. Because, inventions normally within big companies aren't massive. One patent doesn't normally come from a completely new technical area. So I would probably question whether all of those people did contribute to the inventive concept or not. But, you know, at the end of the day I have got clients who have got significant numbers of inventors on a patent and they are all contributors to the inventive concept. I think what you do need to be careful of is obviously from an academic perspective, is the the teams that sort of add to the manager or team lead to the patent as a habit because that's what happens on academic papers. And so we did do some analytics at ARM to try and pick up where that was becoming a trend and then go back and check. Is that person actually contributing to the inventive concept of the invention? But it's there really because the inventors are always the inventors, whereas the owner can change back to the point that you can buy and sell a patent. And it is requirements of the patent officers that they are correct. Otherwise, you can end up perhaps losing the patent, unfortunately.
Emily Wearmouth: I've got to get those names right. Is there anything else that I haven't asked you both about patents that you think that we should be talking about?
Krishna Narayanaswamy: Obviously, patents are very important. And one of the things you want to look at is a strategy for patents. As the company size gets larger, the target becomes clearer for competitors and others. So having a strategy of how you put a fence around yourself as you grow larger is important. And patent plays a big part of that. And that's what we have done at Netskope. So always a good idea to treat patents as strategic assets that will protect your business going forward.
Krishna Narayanaswamy: Yeah, I think I'd agree. Really understand that they are a strategic asset, which has an asset class of its own. They are on the bottom line. They have a value. The value can be far more than you invested in money-wise into that patent. And I think that is really an important point, but as well the other one that for your listeners to to remember is diversity and inclusion is as important in patenting as it is elsewhere. And a lot of technical companies, when you look at the male, female engineer ratios, you actually even have worse male, female invention submission ratios for some reason. We did have initiatives in ARM when I was there, where we tried to encourage non-technical staff to contribute. We had D&I initiatives to try and make it more inclusive, to contribute.
Krishna Narayanaswamy: We did have programmes around neurodiversity, because it is a very technical written process and some people with neuro diversities find it very difficult to read technical information and the depth that it is presented in patent specifications. So we would try and then allow different processes and different methods to get the patent drafts written and signed off. The number of female inventors in large organisations, unfortunately, is usually less than the number of female engineers, which is then obviously less than male engineers. So you get an ever-decreasing ratio.
Emily Wearmouth: I've found this so interesting. I'm going to stop posting ideas to myself, but I might start annoying Krishna with emails every morning he wakes up. I've got a new idea, Krishna. Let's patent it.
Emily Wearmouth: There you go. Yeah. That's awesome. Actually, we want that. So, I would highly encourage that.
Emily Wearmouth: Everybody, we got that recorded. He said he wanted it. The emails. Well, thank you both very much for your time today. This has been absolutely fascinating. You've been listening to the Security Visionaries podcast, and I've been your host, Emily Wearmouth. My top suggestion for your day today is to subscribe to this podcast. You're looking for the follow button on Spotify, or you can just hit the little plus sign on Apple Podcasts. Anyway, make sure you do it and you'll never miss a future episode. I'll catch you next time.
Why Netskope 
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