Why Get Patents?

Why should I bother with patents? Don’t they take forever to be awarded? Doesn’t copyright last longer? (And aren’t patents evil?)

The conservative (as in conservation of value – I’m not using it in the political sense) business practice is to patent wherever possible and use copyright registration or trade secret protection as simultaneous regimes alongside patents to protect assets.

The protection afforded by a patent is substantially broader than other forms of IP protection, inasmuch as copyright only protects against direct copying of particular fixed expressions with at least some measure of intent on the part of the copyist and trade secret law only protects against actual misappropriation or theft of information. Patents, on the other hand, protect against even innocent duplication of underlying inventions or methods and their equivalents. Thus, patents can constitute a much stronger arsenal to ward off competition. On the other, other hand, trade secrets and copyrights can last much, much longer than patents, which expire after 20 years. A comprehensive IP strategy, then, should employ artful use of all forms of IP.

Patents have lately become a thriving form of currency in commercial markets and now comprise a significant component of every innovative enterprise’s ability to manage competition. An entire subculture of intellectual property “investment banks,” speculators, traders, “trolls,” auction houses, and market makers has arisen to give rise to a vibrant cottage industry in the buying and selling of patents. Underlying the value of this market is a shared appreciation for the fact that patents generate licensing revenues when asserted against competitors and potential infringers, who often agree to pay royalties as a much cheaper and more predictable alternative than the exorbitant expense of patent litigation. And of course, when litigated against competitors who refuse a license, patents can ultimately result in large damage awards and court orders that forfend competition.

This, in turn, means that more patent applications are being filed every year as market players attempt to establish competitive positions in what they imagine to be the important technologies of the future. It also leads directly to more issued patents being asserted more aggressively than ever against market participants in practically every sector and with respect to practically every technology.

That puts a lot of pressure on innovating companies to participate in the patent arena. Aggressive attention to patents is wise, if not mandatory, from a defensive perspective to forestall the threat of lawsuits by other intellectual property market participants. Lack of attention to this increasingly important market dynamic gives rise to the risk that the company will have no patents to use defensively to get a seat at the negotiating table when the company becomes the subject of third party patent assertion.

To fight fire with fire, first, you’ll need some fire.

Whether you agree with the law or the philosophy of patenting as currently enforced and practiced, if your company is advancing the state of the art in any meaningful way, you may wish to consider filing some patent applications.

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