When developing a patent strategy for an emerging technology, I look at three specific layers of coverage from both the technology and business aspects of a client. The first layer is the “nuts and bolts” layer, describing the basic underpinnings of the new technology. The second layer is the “tool” layer, covering the tools required to use the technology, and the third layer is the “application” layer, detailing new uses and application of the technology.
Layer 1 patents cover the nuts and bolts of the invention. On this layer, the elements essential to the new technology are described in detail. In a hypothetical case of an airplane technology, the Layer 1 patents cover the components that make up an airplane: a body to carry passengers and cargo, an aerodynamic lift device (wing), and a power plant. These are the essential elements of the basic technology and are generally found in the deep dark recesses of the research and development labs.
A Layer 2 patent covers the tools required to use the technology. Using the airplane example, this would include airports, air traffic control systems, avionics, etc. Without the Layer 1 technology, these elements would not exist, but the Layer 2 coverage adds a solid second net to protect the core invention. Layer 2 patents should assume using the Layer 1 technology, but also cover alternative basic technologies, including foreseeable and unforeseeable design-around alternatives to the Layer 1 patents. Layer 2 patents are usually found when the Layer 1 technologies are being brought into the market, and are best found with a combination of business and research viewpoints.
Layer 3 patents cover the applications of the invention. In our example, this would be airmail delivery systems, overnight package delivery, scheduled and charter air transportation systems and the like. As the highest layer of patent coverage, Layer 3 deals with the ‘big system’ business opportunities that the developing technology can offer. These patents focus on specific applications enabled by and which require the Layer 1 and Layer 2 technologies.
Often, the Layer 3 patents are speculative conjectures on how the market may react and develop the Layer 1 and 2 technologies. Layer 3 patents are based more on business factors than pure technology. In finding a Layer 3 invention, the best place to look is the entrepreneurial business leader and visionary.
By understanding the technology and business factors both separately and together, an effective, defend-able, and valuable patent portfolio can be developed.
