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Building a Patent Thicket

One of my clients likes to describe patents as hyenas. A lone hyena can be easily frightened away, but a pack of hyenas can be very aggressive.

With one patent, a competitor or potential infringer has one thing to analyze, dissect, and find a way around. It may cost a little bit of money to analyze, but it is certainly a doable proposition.

With a dozen patents, the competitor’s workload is substantially increased to the point (hopefully) that it is cost prohibitive for the competitor to find work-arounds for every one of the dozen patents.

A thicket of patents is one manner in which a company can ward off competitors and at the same time dramatically increase its value for a potential takeover.

Having a stack of patents and having an effective weapon in that stack of patents are two different things. The effective weapon must have been put together with some consideration for the intended infringer or competitor and should be laid down in a systematic fashion to cause the competitor different problems as they attempt to design around the patents.

My general strategy is to start with a general patent or group of patents that addresses an immediate threat from a competitor, and build from there. The general patent or set of patents may discuss specific products that are coming into the marketplace and are designed to keep competitors away from the current products or those products planned in the next two or three years, depending on the industry. These patents tend to focus on features that are a competitive advantage to the company at this time.

The second set of patents should focus on technologies within the product or industry that would need to be used by anyone in the marketplace in the next few product cycles. Ask the questions:

In five years, what problems will need to be solved by everyone in our market space?
What will be the themes within our products three or four product generations from now?
How do we see the marketplace shifting in the next five or ten years and where will it go?
Are there other technologies that are shifting the marketplace for our products?

As we discuss these and other similar questions, we look for areas where we might want to place roadblocks for our competitors and invest our research and development effort over the next few years. In some rapidly changing industries, it may make sense to begin filing some patents in advance of intensive research and development.

Remember that patents are business tool that can be used to thwart competitors. Coming up with a patent strategy involves as much consideration of the overall business strategy and marketplace evaluation as it does pure technology.