Offensive Protection of Marketplace

A very common use for patents is to enforce those patents against infringers in the marketplace. This strategy can be much more complex and risky than it seems.

In the simplistic view, this patent strategy involves protecting the products of the business by writing patents that cover the key elements of a company’s business. These patents serve as roadblocks for potential competitors and are designed to make a competitor go a long way to design around a product.

This is the classic patent strategy.

Here, the key elements of a company’s business are defined and protected. In many cases, the elements may be features or components of the products sold by the company, but may also be the tools and processes used to develop, design, manufacture, test, market, sell, and distribute the product. Further, the patentable ideas may include the current product, derivative products, common and alternative uses for the products, systems that use the products, as well as businesses, industries, and related products that may develop from the widespread use of the product. This strategy often is a fertile ground for many patentable ideas.

A key element of this strategy is to evaluate each idea to determine how likely it is to be infringed by a competitor, and when the competitor is likely to infringe.

If an invention is not likely to be infringed in the next 3-5 years, a provisional patent application may be appropriate, since the examination of the application can be effectively delayed for a year. If the invention is likely to be infringed sooner than 3 years, a non-provisional application may be a better choice, since a patent should issue sooner and be available for enforcing against the infringer.

In cases where infringement is likely, an excellent strategy is to keep an application pending as long as possible. This can be done by using continuation or divisional applications as an application matures into an issued patent. Rather than enforcing the issued patent immediately when the infringer comes along, the patentee may write a set of claims that are directly and unambiguously infringed by the competitor’s product. When the second patent issues with very specific claims, the infringement is very clear and an expensive lawsuit may be avoided by going directly to the negotiation table.

This strategy is full of nuance and detail, as explained in other postings on this blog and many other places.