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February 4, 2007

Patenting Points

In the February 5 BusinessWeek article "To Patent or Not to Patent?," Vivek Wadhwa sketches some patenting points. Did you know that "intellectual property law is notoriously confusing"?

When you are struggling to launch a product and build your business, intellectual property issues are often the last things on your mind. Yet protecting your ideas and inventions, and making sure that you haven't infringed the rights of others, could make or break you in the long term.

The article cites Amazon's notorious "one click" patent, which, the article asserts, gave Amazon traction over Barnes & Noble at a crucial time (1999) of Amazon's growth. Actually, Amazon was already on an upward slope, Barnes & Noble was an online also-ran, and the publicity from the suit was more anti-Amazon than anything.

[P]atents are usually worth less than the paper they are printed on. Most patents are obscure inventions with little real world relevance and aren't filed in a way that they provide any protection.

Many times it is impossible, at the time of filing, to know that the technology vector will develop towards a claimed invention. Patents have various uses, from corporate defensive coverage or counterclaim potential to inventive expression with a hopeful eye towards future payoff. Value is subjective, and the harsh conclusion that most patents are worthless is overstatement. Some "obscure inventions with little real world relevance" are too ahead of their time. Spread-spectrum wireless communication, for example, was patented in 1942, but not realized commercially until 30 years later. Few are so visionary.

The problem is, more often than not, patents are an afterthought to companies, which don't take full advantage of patent potential. It's rare that much effort is taken to flesh out inventive possibility in an application to move "just another patent application" to a patent application that is latent with potential: various embodiments, extensions beyond what was needed to meet the corporate need at hand. Patents are too rarely thought of, at inception, as property to be developed.

The article advises against patenting where the technology does not directly support your core business. That, to my thinking, is myopic strategic thinking. Patents should be considered themselves a potential profit center. Thanks to licensing companies, and the rise in contingency law firms, infringed patents possess profit potential irrespective of a company's core competencies. Again, if patents are an afterthought, why bother.

Keep in mind that it is not easy to enforce your patent once you do it get it. There are no patent police, so it's up to you to watch your space. You may have to initiate lawsuits to prove that you really were the first with such an idea and that someone is infringing on it. Unless you have deep pockets like Amazon and the stakes are high, this is often not practical.

"Not practical" = not true. Patent licensing companies like Acacia are adept at helping patent holders monetize their patents. Ocean Tomo auctions provide an alternative outlet for monetization. Nothing that could reaps million is likely to be a cakewalk. Patent Hawk can help you assess whether a patent has profit potential.

The article also offers a tipsheet of suggestions from JiNan Glasgow of Neopatents. Again, for patent help on prior art searching (the tip about "check for landmines"), minimizing prosecution cost and maximizing coverage, and developing a patenting strategy that works for your business, consult Patent Hawk.

Posted by Patent Hawk at February 4, 2007 5:34 PM | Patents In Business