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The rest of this post is written by NextStage's lead IP attorney and is his thoughts on the patent, the process we went through and where we go from here.

This first patent was a struggle for us, a struggle that began with a provisional patent application back in 2001. At that time, Joseph brought me his invention and told me it was like nothing that has ever been made. Such a statement is an anathema to a patent attorney because patent applications are written explaining the current state of the technology, the advancement made by an invention over the current state of the technology, and then claiming that advancement. How do you write an application if there is no current state of the technology? He left me in a fugue state, to borrow from Joseph's lexicon. We did our best, but I was sure the patent examiner would find something to refute Joseph's arrogance. I was mistaken.

Joseph's technology allows a programmable device to sense a person's activity and determine how that person is thinking based on they perform that activity. And the patent examiner rejected the claims in a scattershot approach based on a wide variety of inventions, including attempts at artificial intelligence, sleep deprivation studies for the military, and voice recognition software. The inventions had little nuggets in there like 'slow reaction time pushing a button means a person is sleepy' or 'if a person raises their voice, they're angry.' But just as Joseph had told me, nothing out there was close to what he was doing. The patent examiner offered to allow the case if we would just add more limitations to the claim, fearing the claims as written were sufficiently broad so as to allow NextStage Evolution to corner the market on this technology for years to come. I advised Joseph that if we acquiesce, he'd have a patent, but if we continued the good fight, we could fail. I don't know if it was a matter of principle, a matter of pride, or a matter of greed, but we refused to amend the claims and, two successful appeals later, NextStage Evolution is getting the patent it deserves.

The soon to issue patent claims a programmable device sensing a psychomotor element of an activity of an individual and determining a preferred combination and ordering of preferred modalities of the individual. Notice, the claim states 'programmable device', because while NextStage is currently focused on digital media and web site activity, this disruptive technology also lends itself to a host of other areas, requiring only the ability to sense a person's activity and the computational resources to dissect that activity. These steps are at the heart of how Evolution Technology determines how a person is thinking. This patent will be the foundation for future patents that protect all of NextStage Evolution's commercial enterprise as the behavioral analytics market blossoms. With added time for government delay, this patent is expected to protect NextStage Evolution through 2023.

Please contact NextStage for information regarding presentations and trainings on this and other topics.

Links for this post:

• NextStageology posts, part 1
• NextStageology posts, part 2
• NextStage Analytics posts

• Know How Someone's Thinking in 10 Seconds or Less Half-day training at Toronto Emetrics Marketing Optimization Summit, 3 April 08
• Know How Someone Is Thinking in 10 Seconds or Less Half-day training at the Fashion Institute of Technology in NYC, 13 June 08

• Toronto Emetrics Marketing Optimzation Summit, 31 March - 2 April 08
• New Communications Forum 2008, 22-25 April 08 at The Vineyard Creek Inn & Spa, Sonoma County CA
• San Francisco Emetrics Marketing Optimzation Summit, 4-7 May 08
• SUNY Marketing Professionals Conference at the Fashion Institute of Technology in NYC, 11-13 June 08

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