You might be asking what’s next for your company—and for your IP. In other words, “Now what?”
Let’s start with where you are right now: what you are doing with your IP, and what it’s doing for your company.
You’re already putting your IP assets to work for your company:
• Your trademarks define and strengthen your brand.
• Your copyrights protect your creative and public expression.
• Your trade secrets safeguard your top-secret crown jewels.
Some of the assets in your portfolio are not patents yet, just applications for patents. For these items, their mission is clear: their main task is to navigate successfully their way through the patent prosecution process so that they can become issued patents. Until they issue as patents, they’re just signposts, warning others that they’re part of a barrier that’s under construction. That’s valuable in itself. But when an application issues as a patent, its function (and its value) changes: as an issued patent, it’s not just a notice about things to come, it’s an actual barrier to entry that has legal force to keep competitors out.
If an application for a patent not yet granted is a warning to others that a barrier might soon be in place, an patent that’s issued is part of the actual barrier itself, the fence that keeps competitors away from an area of your technology. So patent applications and issued patents both have a role in your company’s overall strategy.
Patent applications are “under construction” signs, informing others that the aspect of technology they cover is intended to be fenced off in the future.
Issued patents are the fences themselves: “do not enter” warnings with legal teeth. As such, an issued patent becomes part of your company’s enforceable protective barricade that cordons off some of your technology territory and blocks others from intruding.
It’s always better to have an actual barrier to entry than a threat of one to come. You’ve understood this from the start, guiding your patent strategy from application to issuance.
However, “Do Not Enter” signs can be ignored, and fences can be bypassed, scaled, or knocked down. The same applies to your patents. Now that you’ve built some patent “fences” around your products, you need to consider their limitations and their weaknesses. Only then can you figure out how to strengthen them so that they are more effective barriers.
Despite the legal warnings implicit in a patent’s “Do Not Enter” sign, that message alone may not stop someone who wants what your patent fences protect.
A competitor may choose to make a product that infringes the patent, effectively attacking the fence head-on. “Do not enter,” your sign says. “Try to stop me,” the competitor might reply.
Or a competitor may design around the patent or find a loophole that lets them bypass your fence to make a close-enough, non-infringing product.
A competitor might also challenge the validity of the patent itself, knocking it down and removing it from the competitive landscape.
This is where patent litigation comes in. Most business leaders don’t see themselves in the business of filing lawsuits. Litigation is complex, time-consuming, and expensive—and it’s rarely how you want to spend your time while growing your company. But without the will and wherewithal to litigate – fight – against infringers, your patent fences might be useless.
Your patent fence may appear to be a formidable structure on its own, but your willingness to threaten litigation or even carry it out reinforces its protective power. Think of your fence now as electrified, or as one with manned guard towers. That’s a different kind of barrier to would-be intruders than the fence alone. With this vision in mind, consider how to present your patents not as static warning signs that competitors can bypass without consequence, but as part of an actively defended boundary that says “Do not enter,” and means it.
What should you be doing as you assess your company’s patents as barriers to entry? First of all, pay attention to the shape and scope of your patent fencing. What do your patents actually cover? This exercise involves looking closely at the patent claims. For starters, ask yourself what a competitor would need to do to infringe a patent, and how the competitor might design around the patent to develop a useful product that doesn’t infringe your patent’s claims. Your competitors and your potential licensees will be carrying out this same exercise to determine how porous your barriers could be. If you look clearly at your boundaries from the outside, you’ll see the opportunities others might be seeing and the weaknesses in your position they’ll aim to exploit. To take away their advantages, step into their shoes and see things from their point of view.
At the same time, keep an eye on the landscape surrounding your company’s field of business. Who else is active in this fieldd, and what are they doing technically and commercially? Such preemptive surveillance can help you uncover current infringers and might identify others whose business directions may soon intersect with your boundaries.
As you are doing perform introspection and reconnaissance, start considering solutions to the issues you uncover. Involve your trusted advisors, including legal counsel, to understand what actions your company is equipped to take. Here are a few areas to examine:
• If you find soft spots, holes, or shortcomings in your patent fences, how might you repair them? What actions might you take, and how much would it cost?
• If you detect actual infringers, is your company in a position to be proactive? What options are available and how much would they cost?
• Meanwhile, if you recognize that others in your field might be coming close to your fences, how might you approach them commercially to avoid more direct conflict?