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Algae Bloom at the Patent Office

By Philip Goldman and Todd Taylor
Algae may have finally arrived if the rising number of patent applications for algae technologies is any indication. The growth in algae has been spurred by its potential to provide an abundant and sustainable feedstock for fuels, biomaterials, feed and other products. Major investments in algae technologies have been made by the U.S. government, research universities and venture capital firms, driving algae from a backwater topic a few years ago to a major player today.

In 1988, there were only four international patent applications published having the word "algae" in their abstract, as compared to 37 in 1998 and more than 90 during 2008.

Similarly, only three U.S. patents were issued in 1988 containing the words "algae" and "bioreactor" somewhere in their text, as compared to 22 in 1998 and 51 in 2008.

This can mean longer processing times and higher costs because all these new filings in a field that was previously uneventful add to the inevitable backlog that exists in the course of getting patent applications to the point of actually being examined and issued. For instance, a new "art unit" dealing with chemical separation and purification (including algae bioreactors) was recently formed in the U.S. Patent and Trademark Office in order to coalesce what had been several different examination groups. Though this reorganization might make sense in the long run, the immediate result will likely further delay the examination of new applications concerned with algae and similar technologies.

Bioreactors, algae strains, open pond designs, and harvesting, separation and processing equipment are among the things being patented in the world of algae. Indeed, one can potentially patent a variety of things, living and non-living, and from a variety of perspectives. It is important to realize that you might be able to patent more than you think. For instance, were an inventor to develop a new bioreactor-based method of growing algae, he or she would be wise to consider claiming as his or her invention not only the method itself, but also equipment that might need to be customized in order to perform the method, as well as novel intermediates or reagents that might arise. The inventor could also claim the resulting algae biomass, per se, as well as downstream products that might be derived from or based upon such biomass-all in the course of a single application.

Here are some strategies you need to consider: First, file early and often. There are more advantages than disadvantages in being first to the patent office, and it is far easier to later let an application go than to kick yourself for not having filed at all. You can use the long examination backlog to your advantage by deciding whether the application you first filed is indeed still worthy of time and effort.

Expedite patent examination when necessary. There is generally no urgency to getting a patent issued, unless of course to attract investors or pursue infringers. Yet there are ways in which the inevitable lag time in the patent process can be curtailed from on the order of several years to on the order of several months or more.

Don't assume that your product or process could not be patentable. While the final steps in solving a technical problem can often seem obvious and unpatentable to the inventor, a good patent attorney can often help look at the overall problem that initially existed in order to find ways in which the eventual solution can indeed be considered inventive and potentially patented.

Having strong patent protection is a key to attracting investors and ultimately helping establish and protecting your place in the competitive environment. Do it right, and you could grow as fast as an algae bloom.

Phil Goldman is a shareholder at Fredrikson & Byron, focusing on intellectual property matters through the life sciences. Reach him at pgoldman@fredlaw.com or (612) 492-7088. Todd Taylor is a shareholder in Fredrikson & Byron's corporate, renewable energy, securities and emerging business groups. Reach him at ttaylor@fredlaw.com or (612) 492-7355.
 

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