Patent Hawk - Competitive Intelligence

For corporate competitors, patents are a battleground: territory taken, battle lines drawn. Most companies lack a map of the terrain, blindly groping through patent minefields. Stumbling into patent infringement is no way to do business.

There are several scenarios where examining the patent portfolios of competitors are useful. One is for cross-licensing. It may seem surprising, but many companies do not fully exploit their own patented features. A cross-license may help gain a competitive edge by adopting features patented by someone else.

In preparing for a new product launch, patent concerns should loom. A company should perform competitive intelligence, to know the patents a competitor holds that may be asserted. To be forewarned is to be forearmed. Workaround may easily trump walking into a trap.

Not long ago, the specter of willful infringement largely precluded competitive patent intelligence; knowing of other patents that may cover a product was an invitation to treble damages.

The threshold for willfulness has recently been set quite high. In Re Seagate, the Federal Circuit Court of Appeals (CAFC) ruled:

Clearing opinions were formerly de rigueur for fending off a willfulness hex. No longer. Clearing opinions have lost value as a shield: "There is no affirmative obligation to obtain opinion of counsel," as the duty of due care to shun infringement was practically abolished in Seagate.

There had also been prior precedent that trial counsel communication could be compromised by reliance upon opinion counsel to fend off a charge of willfulness. No longer; trial counsel communication is held generally sacrosanct: "asserting the advice of counsel defense and disclosing opinions of opinion counsel do not constitute waiver of the attorney-client privilege for communications with trial counsel."

Another form of competitive intelligence is improving one's own map of patented territory. The first step is identifying areas of patent coverage - heavily patented forests versus open acres of patenting potential.

Patent Hawk can map patent territory for you. And Patent Hawk can help brainstorm patent prospects that are beyond the grasp of KSR obviousness for sowing patents in open fields.

Patent Hawk provides patent competitive intelligence, as well as providing preemptive invalidity assessment for patents of particular concern. Patent Hawk discretion allows a client to know what is necessary for right action, without incurring any liability toward willful infringement.

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	this page: Competitive Intelligence Competitors Willfulness Fertile Ground Gaining Intelligence email: info@ patenthawk.com Phone: 503.922.2433 (Portland)206.529.5146 (Seattle) *The Patent Prospector* (patent weblog)	Competitive Intelligence For corporate competitors, patents are a battleground: territory taken, battle lines drawn. Most companies lack a map of the terrain, blindly groping through patent minefields. Stumbling into patent infringement is no way to do business. Competitors There are several scenarios where examining the patent portfolios of competitors are useful. One is for cross-licensing. It may seem surprising, but many companies do not fully exploit their own patented features. A cross-license may help gain a competitive edge by adopting features patented by someone else. In preparing for a new product launch, patent concerns should loom. A company should perform competitive intelligence, to know the patents a competitor holds that may be asserted. To be forewarned is to be forearmed. Workaround may easily trump walking into a trap. Willfulness Not long ago, the specter of willful infringement largely precluded competitive patent intelligence; knowing of other patents that may cover a product was an invitation to treble damages. The threshold for willfulness has recently been set quite high. In Re Seagate, the Federal Circuit Court of Appeals (CAFC) ruled: Willful infringement permitting enhanced damages requires at least a showing of objective recklessness... To establish willful infringement, a patentee must show by clear and convincing evidence that the infringer acted despite an objectively high likelihood that its actions constituted infringement of a valid patent. Clearing opinions were formerly de rigueur for fending off a willfulness hex. No longer. Clearing opinions have lost value as a shield: "There is no affirmative obligation to obtain opinion of counsel," as the duty of due care to shun infringement was practically abolished in Seagate. There had also been prior precedent that trial counsel communication could be compromised by reliance upon opinion counsel to fend off a charge of willfulness. No longer; trial counsel communication is held generally sacrosanct: "asserting the advice of counsel defense and disclosing opinions of opinion counsel do not constitute waiver of the attorney-client privilege for communications with trial counsel." Fertile Ground Another form of competitive intelligence is improving one's own map of patented territory. The first step is identifying areas of patent coverage - heavily patented forests versus open acres of patenting potential. Patent Hawk can map patent territory for you. And Patent Hawk can help brainstorm patent prospects that are beyond the grasp of KSR obviousness for sowing patents in open fields. Gaining Intelligence Patent Hawk provides patent competitive intelligence, as well as providing preemptive invalidity assessment for patents of particular concern. Patent Hawk discretion allows a client to know what is necessary for right action, without incurring any liability toward willful infringement.
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