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Why Do You Want That Patent?

There are two primary motivations for obtaining a patent: pride and profit.

In the former case, it sometimes just seems cool to have a patent under the view that any engineer or scientist worth their salt should have their name on a patent. Call it bragging rights or a resume booster. Plenty of companies market plaques with an image of one’s issued patent for just that purpose.

Similarly, a company might seek to enhance its reputation and authenticity by building a portfolio of patents, particularly if that company has a technology focus or is new to the world of intellectual property.

A more sophisticated approach, however, is to seek patents only where they will provide value to the applicant, be it an individual or a company. Instead of the traditional conclusion of simply wanting a patent on a new product, for example, we are led to consider patents and other vehicles that will make that product successful. Product success is the goal, not a given number of patents.

Because patents are property, they can be sold or licensed to others, thus providing revenue to the patent owner. For most organizations, pursuing patents solely for this purpose is highly speculative because at the time of filing an application one generally does not know what patent claims will issue, if any, or how the technology will change in the two to five years it will take to get the patent. A patent so obtained could be groundbreaking or it could be worthless.

Returning to product success as a goal, a better approach is to focus a patent strategy on the outputs of research and product development to deliver a product with a competitive edge in the marketplace. That competitive edge results from the legal status of a patent; a patent allows its owner to block others from making, using, selling and importing the patented item or process described in the issued patent claims, which outline what the patent owner actually owns.

An organization should endeavor to build layers of protection around a given product, sometimes called picket-fencing, to further increase the value of that product. Let’s say I innovate a go-kart and get a patent on a transport with four wheels, a frame and a seat. If I don’t plan for a broader layer of protection, someone will get around my patent by building a go-kart with three wheels because my patent requires four wheels. That spurs me to innovate further and obtain a second patent on a transport with three wheels, a frame and a seat, even if I don’t plan to sell that as a product, because that will protect my four-wheel go-kart market and add value.

There are, however, limits to how far one can expand layers of protection. If I worry about someone getting around that second patent by building an electric bike with only two wheels, I could attempt to patent that first but I would be blocked by existing patents on minibikes. I would be losing value by pursuing a patent I would never get.

For a given innovation, FTI combines analyses of patentability, market need and product planning to determine whether to file a patent application and how far to take layers of protection. If expected patent claims will not enhance the competitiveness and therefore value of a product, there is little reason to commit the significant resources necessary to file the patent application.

Because protecting research and product development is never as simple as designing a go-kart, the complex nature of intellectual property usually warrants consulting your intellectual property attorney when evaluating a new product to commercialize.