Probably the most common mistake related to the strength of IP has not so much to do with the strength of the right itself but with the owner’s perception of what it means. An IPR will not give you the complete and utter power to stop copycats from appearing. While the fact that you can stop copycats is true in practice the picture is much more complex as it involves large investments in time and money and carries a lot of risks. The truth is, many of the IPRs currently out there will not stand a chance in litigation situations – be it because the opposite party has devoted more resources in background searches, the initial right was given in fault or the patent is poorly drafted (with claims that do not read on the business objective of the company, too narrow or too broad).
Another mistake commonly occurring is confusing IP strength with IP value – while strength is a factor that determines value it is not value itself (as this is subjective and results from a combination of factors like desired use, expected outcomes and other). This confusion often arises in investment/partnership negotiation situations in which, much like litigations, both parties are trying to undermine each other’s power in hopes of a better bargaining position. Again… strength alone does not equal value. Going into negotiations without knowing the saleable perspective of your IP and over estimating the importance it carries for the other party (or underestimating the other party’s preparation) can result badly.
So make sure your bullet vest is as strong as possible to be able to use and create value from your IP here’s what you can do:
- Undertake regular FTO analysis – determine where your freedom of operation might be jeopardized and assess the strength of the third party claims (remember that patents are issued on a constant basis so a FTO investigation conducted now might not yield the same results as the same search 18 months later)
- Think strategically about drafting claims – determine the structure of your IP claims to match your FTO analysis and business goals – present and future
- Don’t forget about securing sales – sales are one of the most important returns you can get on your patent investment. A solid customer base will work in favor of most negotiations and the revenue gained will help assert your rights.
- Choose your battles wisely always keeping in mind your strategic purpose, triggers and limits (…with enough resources any IP can be eventually broken)
- Regularly gather industry intelligence
(This is number 16 in our list of IP mistakes and how to avoid them.)
Photo credit: chrissam42