Thursday, October 22, 2020

Patent Perspectives

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After 30-plus years of counseling both corporations and individuals concerning patent law there are several nuggets, I have found to be very helpful.

WHY PATENTS

It is common to think of a patent as a tool to stop competitors from infringing. Because of that view, I have sometimes encountered the attitude that it doesn’t make sense to pursue patents because they are too expensive to enforce. The number of patents that end up in litigation is between 1-2 percent of patents issued. In addition, only about 0.1 percent continue to trial. Most often even litigated patents form the basis of settlements and licensing agreements. For these reasons I counsel clients to see patents as a tool that serves a variety of purposes including: (1) enabling fundraising and attracting venture capital; (2) increasing the value of their business; (3) increasing sales as purchasers appreciate and often wish to purchase that which is new, different and improved; (4) suppressing competitors who also don’t want to become embroiled in patent litigation; and (5) a way to recognize those in their company who innovate and keep moving forward.

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FINDING PATENTABILITY

My first mentor was Charlie Watts, not the drummer for the Rolling Stones, but the best patent attorney I have ever known and my friend. During my first week practicing patent law I asked Charlie, “how do you find patentability?” As I waited, pen in hand, ready to take copious notes Charlie responded, “Find a difference that makes a difference.”

Legally, the primary requirement is having a useful patentable subject matter that has a feature or combination of features that are new and nonobvious. When helping an inventor to see when he’s invented something and to appreciate what he’s accomplished, Charlie’s definition is much more user friendly.

PATENT PENDING

While it is always satisfying to obtain a patent, people should not underestimate the value of patent pending. Depending upon the technology the total average pendency of a patent application ranges for 2.5 to 3.5 years. Accordingly, often during much of the early stages of launching a concept the invention is patent pending. Some of the advantages to patent pending include:

• Applications are generally kept secret until published at 18 months after earliest filing date. This means that competitors are uncertain as to the scope of patent coverage and may be inclined to not copy an idea.

• The scope of patent protection is determined by the breadth of the patent claims. While pending the scope of the claims can be changed and should there be a potential infringer it may be possible to amend the claims to more accurately describe a potential infringer’s product.

SCOPE OF PATENT PROTECTION

The extent of patent protection is determined by the patent claims. Not knowing what the patent claims cover is the same as buying a piece of real property without knowing where it begins or ends. For a patent claim to be infringed, it is generally necessary that every feature or element of the patent claim be included in the infringing item. When a client obtains a patent or preferably before issuance of the patent, they should review the scope of the claims with a patent attorney. They should ask which feature or combination of features was found to be patentable. Only then can they begin to determine the scope and value of their patent.

In addition to these tips, the most valuable way someone can protect their intellectual property is to develop a good working relationship with a patent attorney. By communicating with a patent attorney, they can explain their technology, their market strategy and goals; key steps to developing a successful patent strategy.

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