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Steve Jobs once quoted Wayne Gretzky: “I skate to where the puck is going to be, not where it has been.” Both men showed that you could beat bigger, faster, and more powerful opponents by creating new opportunities with a focused view of the future. By doing so, they changed what was possible and what success could look like.
Patent law today demands this kind of thinking. But while Gretzky had to predict the next few seconds, patent strategies need to look much, much further ahead. That’s because the pace of the game is faster and the stakes are higher. More than ever before, patents are about identifying and claiming the future.
It hasn’t always been this way. In the past, the first person to invent a new product or technology would have a considerable lead on competitors, one that could be measured in months and years. Today, the rate at which an idea can be turned into a marketable product has accelerated dramatically. That’s good for inventors, but it also means knock-offs can now sometimes be produced in days, or even hours. As a result, “first to invent” is not nearly the lead or the advantage that it once was. With respect to many products in today’s marketplace, the only viable way to secure market dominance is to obtain broad patent rights.
Obtaining those broad patent rights is not just about patenting inventions, which are intended to keep competitors out of one’s own backyard. It’s also about building patent portfolios designed to keep competitors out of the entire neighborhood. To do that well, one has to focus on patents as products, with their own R&D dollars and their own return on investment. This is especially critical in view of the changes introduced by the America Invents Act. If a company’s monopoly is built on only one or two patents that focus on the company’s specific inventions, and third parties can shoot down those patents for cheap, the protection can start to look rather thin. The question then becomes, “How does one build successful patent portfolios?”
One approach is called “white space patenting.” It begins with searching the prior art for whatever is market-relevant and not yet disclosed. That is an entirely different search from simply looking for what the inventor invented. In white space patenting, the question should be, “What do you want to stop competitors from doing?” The information gleaned from this approach is not only fodder for great patent applications, but can also be very valuable in directing R&D efforts and validating business cases. Interestingly, while this is a good way to know where you can go as far as patents are concerned, it doesn’t necessarily follow that you should go there with a product line. The tendency for some companies to overemphasize the value of those white spaces has drawn some valuable criticism and surprising experiments. Perhaps some things in existing markets haven’t yet been patented for good reasons.
Another, more visionary, approach is what to Robert D. Fish, of Fish and Associates, a firm specializing in intellectual property, calls “green fields patenting.” According to Fish, “This method focuses on what the marketplace will likely want five, 10, or more years in the future.” This involves a much more cross-disciplinary approach, with input from sales, marketing, and product experts as well as patent lawyers. Working together, these professionals can imagine, define, and patent new markets that do not yet exist. The interesting aspect is the fact that patents can now be filed based exclusively on those future developments. As long as you can describe how it could be done, you don’t have to actually do it. It also means that your patent doesn’t have to be practical, either. In fact, the best green fields patents are sometimes those that cover innovations that can only become practical years in the future. Clever patent filings may even hide their true market-defining natures. Look closely at current filings today, though, and you may find them.
If attorneys are going to be looking for these kinds of patent opportunities—where the puck isn’t yet—searching will be absolutely critical. You will need to be able to comb through current patents to find the gaps. You will need to stay on top of trends and news that might hold the key to market changes. You will need all the help you can get; after all, you’re going into the future.
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