Business Theory for Patents

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.

Writing Your Own Patent

Inventors sometimes file their own patents. Often, I consult with inventors who are considering writing their own patents or those who have already done so. In general, these pro se patentees are looking to save some very valuable cash and are willing to invest their time and effort into learning how to write and file a patent.

Slowing Down Patent Issuance

There are many strategies and situations where slowing down the patent from issuing is an enormous benefit to the client. Personally, I take a very proactive approach to making the patent issue as late as possible where this is needed, such as filing a provisional application. I could not bear the thought of writing a sloppy patent application or intentionally filing claims are ambiguous or need a lot of work to clean up. I think it is reprehensible to intentionally and needlessly drag out prosecution by filing endless responses to Office actions, because it lines the pockets of the attorney without benefiting the client. I do think there are legitimate, low cost mechanisms that can extend the prosecution time to help the client get the most protection for the money spent.

Another Use For Provisionals

Provisional patent applications give the inventor the right to label a product “Patent Pending”, which can have enormous business effects. The mere label of “Patent Pending” can be enough deterrent to keep competitors out of a business arena.

Provisional applications can be obtained with very little disclosure. In theory, a cocktail napkin with a figure and a little description may even suffice.

Your Competitive Advantage May Not Be Your Intellectual Property

As much as patent professionals like to harp about the advantages of patents, copyrights, or trademarks, it is also like asking a barber if you need a haircut.