Patent protection is one of the most important ways companies can protect their assets. Patents provide an unequaled head start in the marketplace. With patent protection, your business can work out all the growing pains associated with your new technology, perfecting it and its distribution, before your competitors can start. But even more importantly, patents allow you to entirely prevent latecomers from getting a foothold. Patent protections prevent your competitors from making, using, selling, offering to sell, or importing your technology throughout the country. That sort of exclusivity is immeasurably valuable, especially where key technology is involved.
But, patents are not cheap. Most businesses cannot afford to patent (or attempt to patent) all of their technological advances. So how can businesses most effectively manage their technology and patent protection so that they receive the protection they need when they need it?
1) Prioritize patenting
It sounds simple, but if you want your business to maximize patent assets, you need to make patenting your technology a priority. This means more than simply patenting those technological advances your company thinks are valuable. This sort of approach allows far too many assets to slip through unprotected and risks unauthorized, and potentially patent invalidating, disclosures along the way. Instead, it requires a company-wide commitment to protecting your intellectual assets. This means educating your employees on what sort of advancements can be patented. Unfortunately, many engineers, developers, or research and development personnel undervalue their technological advancements. Identifying all possible inventions means more exploitable technology for the company. This also means educating your management on the costs associated with patenting technology. Patent acquisition is not cheap. But these costs need to be seen as an investment in the company and not expenses to be cut. And, perhaps most importantly, prioritizing patents means enforcing the patents you do obtain against infringers. Patent infringement actions are very expensive. But without enforcement (or the credible threat of enforcement), patents are not worth the paper they are printed on.
2) Identify early
One of the most important tips for managing your patent and potential patent assets is to have a process in place to identify key technological advances early in the development process. Knowing what technology is being developed and carefully evaluating that technology with an eye toward the marketplace will allow the company to muster the assets necessary to protect key advancements. This evaluation should not be limited to research and development personnel alone. Key marketing, sales, and management personnel, as well as a qualified patent attorney, should all ideally be involved in this evaluation with research and development personnel for maximum returns. While this evaluation is critical, it also needs to be quick. Research and development often moves at a frenetic pace. Evaluation should not slow this process, but instead must integrate in a way that allows for identification and evaluation without obstruction. And perhaps most importantly, early identification of key technology can help prevent unauthorized disclosures. When technology is exposed to the public (whether through use, publication, sale, or offers for sale), patent rights are lost. There is little more frustrating than spending a fortune developing key, groundbreaking technology, only to find that it is not patentable because of a marketing piece that was sent to key customers during development or because of a trade show demonstration of the technology. Identifying key technology at an early stage can help the company make sure that early, unauthorized disclosures are avoided — preserving the company’s rights in that technology for protection at a later date.
3) Exploit hits to the hilt
Research and development does not always produce valuable technology, which is why when technological advancements are made it is important for the business to extract every possible bit of monetary return from that technology. This requires identifying and exploiting all possible iterations of the technology at issue. This process should ideally include the same sort of cross-disciplinary personnel, with a qualified patent attorney, to ensure that possible modifications are understood and appropriately covered with additional patent applications. Multiple patents and patent applications should be filed on every way that a particular technology can be practiced to ensure that competitors do not have access to easy modifications to your technology and that your exclusive use of the technology lasts as long as possible.
4) Incentivize development
Obviously, one of the keys to a successful patent program is a steady succession of new and valuable technological advancements. This requires not just excellent research and development personnel and evaluators capable of identifying key technology for exploitation, but also an effective incentive program to reward those involved in the process. While the business must ensure that any and all developments made by its personnel are exclusively owned by the business, this does not mean that bright, innovative employees should not receive adequate reward for their achievement. The business should have in place an incentive program which encourages all employees (not just those tasked with developing new technology) to innovate on behalf of the company. And, where that innovation benefits the business, those involved should share in the profit.
5) Keep an eye on the Joneses
Finally, any good patent asset management program must include some idea of what competitors are doing in the marketplace. This monitoring serves two chief purposes: one defensive and one offensive. First, by monitoring what the competition is doing, the business can make sure that it stays at the forefront of technology. It also allows the business to develop responsive technology when competitors achieve technological breakthroughs. To accomplish this monitoring, salespeople should be encouraged to report on new technology they encounter in the field. Marketing should be encouraged to monitor what the competition is saying about its new technology and development. And key personnel should attend national conferences to identify the technological cutting edge. All such activity makes sure that the business is never far from the technological forefront. The second reason monitoring is necessary, is to make sure that instances of infringement are identified and stopped promptly. As noted earlier, patent rights are worthless unless enforced. When infringing technology is found in the marketplace, it should be immediately brought to the attention of management so that appropriate steps can be taken to stop such infringing activity. Again, salespeople and marketing should be encouraged to report on possibly infringing activity. And, customers should be encouraged and incentivized to report on possibly infringing activity. By actively investigating possible infringement and actively taking steps to halt such infringing activity, the business maximizes the value of its patent rights and gets maximum return on its research and development investment.
Jason Schwent is a partner in Thompson Coburn’s Intellectual Property group. He is the editorial director of the Patent Billy Goat. You can find Jason on Google+, Twitter, and reach him at (314) 552-6291 or firstname.lastname@example.org.