To win with patents means different things to different organisations, but one thing is true for them all: it is actions that get results. This blog tells you some of the actions you should build into your business so that you know the things you should do to win with patents.
What is winning with patents?
A good place for us to start is to think about what it means to win with patents for a tech start-up or SME. It should be obvious to say this (although often you do wonder) but obtaining patents is a commercial enterprise. Patents should add more value to your organisation than the cost you incur to obtain them. If they don’t then you shouldn’t waste time and money on them.
It’s sad to say, but I rarely see a business, whether it be a start-up, SME or even a large corporate that is confident its patents bring more value than they cost, or how they would bring that value. Effort and IP budget are commonly focussed in areas that are not commercially relevant, or that are no longer commercially relevant even though they were a few years ago.
So if you’re a tech start-up or SME, what does good look like for you when it comes to patents? Where does the value come from?
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Winning patents for tech start-ups
My experience is that the critical thing for tech start-ups and scale-ups is funding. Yes, there are other things on their plates, but funding always features highly. The tech business leaders I talk to are pretty much in a constant cycle of starting to think about the next funding round as soon as the last funding round closes.
It stands to reason then that creating value for these organisations means increasing the chances of gaining investment and/or increasing business valuation. Patents can help achieve these goals by reducing investor risk – if an investor sees that risks are reduced then they are likely to feel more comfortable about parting with their cash.
Reducing risks is likely to include…
- Protecting the core technology with patents or patent applications
- Analysing risks associated with whether the business might be infringing 3rd party (e.g. competitors’) patents
Taking care of these two points would be sensible for tech start-ups and add value to the business.
Winning patents for SMEs
SMEs are more established businesses and are likely to have a good market position. The same principles of risk mitigation are at play, but this time there will be a slightly different flavour…
- They are probably looking to gain and maintain exclusivity with their product lines by keeping competitors off the grass
- They might also want to protect a new strategic direction that matches their R&D effort
- Risks are a factor for them too and they’ll want to avoid problems from infringing competitor patents
You can see from the above that there’s a lot of overlap between what tech start-ups need to do and what tech SMEs need to do. There’s probably more scope for refinement of a patent plan in an SME and there will be increased complexity, but if both are starting from scratch then very similar things apply.
What’s common?
So, in all smaller tech businesses – start-up or SME – we can boil ‘winning with patents’ down to these things…
- Protect core technology with patents
- Analyse and manage the risk of infringing 3rd party patents
They don’t cover absolutely everything, but they’re a great start!
Thinking vs acting
There’s a great quote by Johann Wolfgang von Goethe that goes… “thinking is easy, acting is difficult, and to put one’s thoughts into actions is the most difficult thing in the world.”
This is a really important point. All businesses need to take actions if they want to improve their patent position. There’s always plenty of content out there about saying you should make sure you have a good ‘patent strategy’; or telling you that you need to make patents ‘commercially relevant’ and tie them to your ‘business goals’. There’s a lot less content about what that actually means and what things you should actually do with your inventions and your patents.
It’s easier to act your way into a new way of thinking
than think your way into a new way of acting
For many tech businesses, in particular for start-ups, scale-ups and SMEs, a detailed patent strategy isn’t necessary and taking care of the basics we discussed above will be enough. SMEs can win with patents by diving straight into doing stuff, and it needn’t mean thinking too hard.
There’s another great quote I really like by Jeremy Sternin: “It’s easier to act your way into a new way of thinking, than think your way into a new way of acting.”
In other words, if you want to build patents into your corporate culture then take sound actions consistently.
Do these things
As we’ve mentioned already, a tech start-up or SME can do a lot of good and add a lot of value by taking care of two patent basics…
- Protect core technology with patents
- Analyse and manage the risk of infringing 3rd party patents
Protecting the core technology
This breaks down into a few simple actions that can be repeated with appropriate frequency (e.g. every 6 or 12 months) – you may need to draft in specialist support in a few areas.
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Gather up your inventions
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- Meet with the R&D teams and discuss what they’re working on
- Ask them what problems they have had to solve and how they did it – each one is an invention
- For each invention, write a paragraph and include a diagram explaining how it works – these are invention disclosures
- Store the invention disclosures in a secure place as they are a valuable record of your innovation in their own right
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Assess the commercial value of the inventions
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- Leaders of the business meet to run through all the invention disclosures and discuss things like
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- How new the invention is
- How well the invention can be protected with a patent
- How important the invention is to the business
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- Score the answer to each question
- Rank the inventions
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Protect the highest ranking inventions through patent applications, according to available budget
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Analyse and manage risk of infringing 3rd party patents
These actions should also be taken regularly, but are best when done at particular stages of a significant R&D project, such as a new product or a new feature of an existing product.
Specialist expertise from a patent searcher and a patent attorney will be needed. After reading this, you will be able to instruct these professionals correctly to make sure you get what you need at an appropriate price.
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At the beginning of a new R&D project
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- Undertake a high level patent search to identify potential patents in the same technology
- Have a patent attorney review the results and report at a high level – you don’t need a detailed written report
- Use the results to inform progression of the project and keep away from problematic IP
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At a later project stage gate
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- Repeat the above steps with a new search based on the latest iteration of the new product or feature
- This may not be necessary for all projects
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Before launching the product or feature
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- Undertake a full patent search to identify patents that might pose an infringement risk
- Have a patent attorney review the results of the search and prepare a written report on infringement risk
- This may not always be necessary and is expensive so should be reserved for R&D projects related to core technologies and product lines
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