This week on IPWatchdog Unleashed, I spoke again with Fran Cruz, Senior Vice President of IP Solutions for Juristat. Our conversation was about a topic that should be top of mind for every patent prosecution firm, every in-house IP department, and every legal operations professional trying to make sense of the current market for patent related legal work. Where is patent prosecution work going, when does work move from firm to firm, when it does move, where is it moving, and what will firms have to do to win—or keep—the patent preparation and prosecution work?

The mythology surrounding the act of invention tends to concentrate on the breakthrough moment. There is a flash of insight, a sketch is made on a cocktail napkin, the prototype is assembled in a garage to prove the brilliance of the concept. Unfortunately, commercial markets are considerably less romantic. They do not reward ideas merely because they are clever, patentable or even technically superior. They reward products that work, solve a problem customers recognize, can be manufactured at an economically sustainable price and generate an acceptable return for whoever assumes the risk of bringing them to market.

In any patent dispute, the strength of the patent still matters. But increasingly, it is not the only thing that matters—or even, in some cases, the thing that matters most. That means where a patent dispute takes place cannot be a tactical afterthought or viewed as a choice of federal district courts in the United States alone. This is true today more than ever because despite patents ostensibly being property—at least according to the Patent Act—which tribunal and which judges make the ultimate decisions affecting the patent often matter most of all because patents and patent enforcement have become driven by ideology and the type of fervor normally reserved highly emotionally charged discussions, like religion and politics.