The curse of knowledge (or why your patent attorney sends you confusing emails)

Patent attorneys talk a different language. But you have a right to expect your attorney to talk in your language and make complicated processes easy for you. The truth is that they just know too much about patents — it’s both their strength and their weakness.

Have you ever wondered why it is that your patent attorney finds it impossible to talk to you in a language you understand? It can be painful to interact with. Apart from the fact that they send you a tsunami of emails (this is basically an arse-covering exercise and a different topic that I’ll discuss in another post), the emails that they send are filled with patent jargon like PCT, EPO, UKIPO, Search Report, Prior Art, Examination Report, Validations, Priority, the list just goes on and on. It’s like they’re not even trying to make things clear. Like they’re doing it on purpose as part of some in-joke that only they get.

The truth is less sinister than that, but no less irritating.

The curse of knowledge

Patent attorneys are suffering from a cognitive bias known as “The Curse of Knowledge”. The term was first coined in an article by Colin Camerer, George Loewenstein and Martin Weber published in the Journal of Political Economy in 1989 and can be explained this way…

When we possess knowledge, it is impossible to imagine what it’s like to lack that knowledge.

This was brilliantly demonstrated in an experiment conducted in 1990 by a Stanford University graduate student called Elizabeth Newton. You can easily replicate the experiment now and all you need is a willing partner, a finger and a table.

· Think of a song but don’t tell your partner

· While your partner is listening, tap out the song on the table using your finger

· Ask your partner to name the song

· Do this a few times with different songs and/or different partners

· Predict each time whether they’ll get the song right or wrong

· Then compare your prediction against the results

To you the song will seem obvious, but to your partner it will be anything but obvious. When Newton conducted her experiment, she asked the “tappers” to predict how many “listeners” would guess the song and they always overestimated. By a long way. In fact, the tappers estimated that around 50% of listeners would guess the song. The actual number who could guess the song was 2.5%! Yes, 2.5%!!

This is the curse of knowledge in action. As the tapper, you are so familiar with the song that I bet you even heard the notes in your head with each tap. How could someone not recognise it?!

But the issue you face is that you possess knowledge of the song and that leads you to the biased assumption that the listener also has that knowledge when they do not — that is your curse.

Patently obvious why attorneys talk gibberish

Now let’s turn our attention to the subject of the blog: the (often not so) humble patent attorney.

Your patent attorney has been knee deep in patent law for decades. She knows a hell of a lot about patent law. And as she taps out her tune on her table with every word in every email and letter she writes to you, she hears the familiar tune of the patent application process playing in her head. “Wow,” she thinks. “The insightful commentary I’m putting down here will blow my client away!”

But, of course, all you hear is the dull, monotonous tap, tap, tap of a finger on a table. You strain to read more carefully, more deliberately. You try to extract some sense from it all because you think it must be important, otherwise she wouldn’t have written to you about it. Finally, after much wasted time and effort, you give up and call her to ask what it’s all about. Then the tapping starts again, this time over the telephone — tap, tap, tap…

Lifting the curse

The honest truth is that there are a lot of technically good patent attorneys out there. They know the law inside out. But that is only half the skill of being a really good patent attorney. A really good patent attorney talks to their client in a language they understand, which should be the language of business and of commercial outcomes.

At some level, every client is engaging with the patent process in order to achieve some positive commercial outcome for their business — Lord knows they wouldn’t want to do it for fun!

The job of a patent attorney is to talk to their client about those commercial outcomes. To understand those commercial outcomes. And then to translate those commercial outcomes into specific actions that can be undertaken before the relevant patent office.

This takes time and investment on the part of the attorney, which is not something that they can easily do when they are under constant pressure to bill their time and to account for every 6 minutes of their working day. But it is time well worth spending and, if you want to get the best from your patent attorney, then it is time that you should insist they spend with you and that you should also insist you do not pay for.

It also requires a good understanding of commercial and business issues on the part of the attorney. This is something you should try to understand about your attorney before you begin to work with them: what do they really know about business and are they able to understand that language when they work with you. You need an attorney that does.

When you find an attorney who can talk to you in your language, without the jargon, it will remove so much frustration from your relationship and save you a lot of time to devote to something you’re good at while your patent attorney gets on with what they’re good at.