By Robert Cantrell
A lot of people talk about patent strategy, but few understand what it means. I know this because I taught patent strategy as a continuing legal education course at several institutions. A patent strategy should be an integral part of enterprise strategy, as much as Sales, Marketing and Operations are. More often, however, enterprises build patent portfolios while only incidentally considering their use for the enterprise. It is as purposely leaving out a diamond from a beautiful ring or not placing a final brick to finish a wall of your home. Just because it is not immediately evident to you does not mean your competition does not see it or is aware of your glaring oversight.
Your patent strategy should, with deliberation, change the behavior of customers, partners, and competitors in ways favorable to your enterprise. You enable it with your patent portfolio. Based on the inventions claimed in your patent portfolio and how well they are claimed, you should use your patent portfolio to change the behavior of customers, partners, and competitors by fostering a useful interplay between isolation and integration wherein those who might otherwise act against your interests—buying other products, discounting your value, securing other relationships, copying your ideas, or simply ignoring you—work with you instead. This is in the spirit that good fences make good neighbors.
With the sought behaviors of others in mind, your patent portfolio should have:
- A focus commensurate with your budget to build, maintain, and use it;
- An economy wherein you spend no more and no less on the portfolio and its use than necessary for your strategy to succeed;
- An angle from which to secure the freedom for your enterprise to operate and bring its other competitive advantages to bear, and;
- Guidelines from which to bear no more and no less the risk than required for your patent claims to be respected. If people respect your claims, this being the aforementioned metaphorical “fence”, they may favorably change their behavior without you even knowing they thought to do otherwise. As in war, a very strong adversary is a deterrent to even starting a conflict.
At the heart of your patent strategy is the invention, and you should foster receiving the quantity and the quality of inventions from which to draft enforceable claims where those inventions are also important for your enterprise. Your mindset as a patent strategist should be to seek a balance between attempting to claim too much and too little where you may, if supporting a large enterprise, have the resources to leverage patent quantity to influence behavior and may, if supporting a comparatively smaller enterprise, depend more on patent quality. In this light, you should consider that the real role of inventors is to make the job of associated salespeople easier and then seek to protect those elements of an invention that make a competitive difference at the point of sale.
While working with the patent laws as they stand, and considering the enforceability of claims under those laws, you may also seek to influence lawmakers to create useful changes in the law. You work from both ends, playing by the rules while seeking to create better ones. The laws you want tie back to the beginning, those laws that work best to help you favorably change the behaviors of customers, partners, and competitors. If you cannot win the game as it stands today, you may be able to change the parameters of the game for a better future.
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