Patent

Top 3 Mistakes when starting your Patent Strategy

Speaking with prospective clients this week reminded me of some common and potentially costly mistakes that innovators make.
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Posted on
April 14, 2020
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Speaking with prospective clients this week reminded me of some common, and potentially costly, mistakes that innovators make. These mistakes are the result of preconceptions about patents that can be plain wrong.

Here are 3 of the top misconceptions people have about patents.

Mistake #1 – Patent Strategy is only about patents.

Well, yes and no. Innovation is all about the application of technology as a solution to a problem. That problem is probably not strictly technological. It is a problem because it impacts usability in some way–this means there’s a human involved in the overall process. The problem is bigger than making a circuit faster, implementing a more precise sensor, or filtering . It’s about the impact that a faster circuit has on a user.

Sometimes the innovation is much less about the technology than it is about the impact you’re creating for your users. This is often the case for software companies and one of the reasons “software patents” are difficult. The user impact can be dramatic, and the software implementation can be complex, even though the underlying innovation might be difficult or impossible to patent.

When an entrepreneur called to discuss patent strategies, we discussed several options applicable to their business model. We also raised the issue of trade secrets as part of their overall strategy. “Hmm, I hadn’t thought of that before.” That’s a common response. This entrepreneur is in the funding process and was looking for ways to address patents and IP in their pitch and use of funds. However, the availability of patents can be limited for certain technologies. So it’s important to consider the overall mix of IP tools and assets that will provide the optimal protection, rather than focus exclusively on patents.

So when you start asking about patent strategy and protecting your technology, remember to think outside of the patent box. Most innovations involve proprietary trade secrets, branding, or ornamental designs (covered by design patents, which are often excluded from the initial patent discussions, for whatever reason), and controlling contractual rights. It’s fine to start the conversation by talking about inventions and utility patents. Just remember to think about the complementary, and sometimes more valuable, aspects of your overall innovation, solution, and user experience to find additional avenues to define and protect your competitive advantage.

Mistake #2 – Imitate another company’s patent strategy.

One conversation from this week referenced the Wright Brothers patent dispute, the defensive publication thoughts of an business school professor, Tesla’s battery patents, and the narrowly focused patents of a niche technology and licensing company.

These are all interesting aspects of patents, but the problem was none of them was suitable for the company that was looking at them as models for their own business model. Perhaps the reasons some of these patent stories are interesting is because they are unique–the approach taken by a specific company stands out from other companies precisely because of the unique circumstances around the company using that patent model.

At some level, if unique patent strategies were easily transferable from one company to the next, or across different industries, then they wouldn’t really be strategies because they wouldn’t provide competitive advantage to anyone. Every company that seeks to adopt a similar patent strategy simply because someone else is doing it potentially overlooks the unique characteristics of that strategy that either fit or don’t fit with their specific business model, distribution channels, target market, and unique mix of strengths and weaknesses.

Mistake #3 – Your goal is to get a patent.

Patents can be valuable assets that are used to transact business. You can sell a patent. You can license patent rights. Unless you are like the person who told me years ago he wanted a patent as a trophy (but had yet to invent anything), patents are not the end goal. Patents are only a step toward a larger goal. There are many different types of goals your patent can support, but your patent is simply part of the path toward that larger goal.

Although patents can be a significant milestone along your innovation journey, if you treat your patent as the destination, you’ll find yourself frustrated with the experience. You must weave your patent into the larger goals of providing solutions to users, building communities of people who benefit from your technology, and controlling the ways your technology can be deployed.

To summarize, it’s important to understand that patent strategy is contextual to individual circumstances. What might be a great strategy for one situation might be a “mistake” for many other situations. Innovators should search for the optimal mix of protection tailored to their unique circumstances. Here are a considerations for customizing your IP strategy:

  • Use mix of different types of IP rights
  • Think about the cost and timing for obtaining IP rights
  • Consider the different types of competitors, direct and indirect, for your product/service offering
  • Forecast the likelihood of asserting your IP rights against different competitors, as well as the speed and cost of such assertions
  • Evaluate the ideal breadth and depth of coverage for your IP portfolio
  • Establish a mix of IP rights to protect current products/services vs future products/services
  • Balance obtaining IP rights on your own products/services with defensive strategies for protecting against intrusion by competitors, suppliers, partners, and consumers
Jeff Holman
Jeff Holman draws from a broad background that spans law, engineering, and business. He is driven to deploy strategic business initiatives that create enterprise value and establish operational efficiencies.
Sky Blue Envelopes

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