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Patent Drafting Styles Change to Meet the Client’s Needs – Building a Portfolio

This post is a third of a series of posts describing patent drafting styles. See the others here and here.

When building a patent portfolio with the intent to sell a company, the main audience is not potential infringers, but the acquiring company. Depending on the situation, the acquiring company may have any of several different reasons for the acquisition.

For example, the acquiring company may be looking to add an existing product to its product line. In such a case, they would like to see a patent portfolio that protects the product specifically, as described here.

In many cases, the patent portfolio may be an instrument for forcing a sale of the company. Litigation may be overtly or subtly threatened by the patent holders and may be enough to urge a buyout by the potential infringers to make the threat go away.

When developing a patent portfolio for this situation, the patent claims may be tailored to go after the acquiring company directly.

In a less adversarial situation, an acquiring company may buy out a patent portfolio because the portfolio gives them a weapon against the acquiring company’s competitors. This situation may have claims directed at the acquiring company’s competitors.

Often, it is not clear what the exit strategy for a company may be. Patents tend to have very long gestation periods and a strategy that seems plausible at the filing of a patent may be completely irrational by the time the patent issues.

The general philosophy in developing a portfolio that enhances the value of a company for buy out or takeover is to diversify the patent portfolio within reason. Where possible, draft an application that is directed at a potential acquiring company or the competitor of the acquiring company, but also make sure the core products of the company are protected.