Patents 101: When Offense Plus Defense is Your Best Strategy
As you begin to write your patent application you need to be able to answer the question, “What do I want to protect?” There are different strategies for developing patents aimed at maximizing the extent of your intellectual property rights. The usual route to take is a straightforward offensive strategy where you patent your idea to keep it from being adopted by competitors. Alternatively, you might incorporate a defensive strategy to protect yourself from competitors who might try to lay claims to variations on your ideas that would make it harder for you to implement, monetize or innovate your intellectual property. This scenario is common when patent holders have innovated on their own inventions. In order to know if this two-pronged strategy is best, you need to start by doing adequate research and answering some critical questions.
Before you start writing your claims, make sure you have done your homework and looked at similar patents, reviewed prior art, and done a competitive patent review. We covered details on conducting a prior art search here, but good places to start are Google Patents and the USPTO website. Often, as you do your research you will start to get a sense of what other relevant IP already exists and where your potential patent might fit in the landscape. We always recommend using a professional patent search to validate your findings.
Once your research is completed, your first priority should be to protect your main idea or solution with an offensive patent. This is your best protection and the patent that you would guard most rigorously. Think about the claims you need to make. What is new about your idea? Is it a technical breakthrough? Is it a unique design? Does it solve a problem in a specific situation? Is the idea an improvement on an existing patent? What aspects of that future product, based on your IP, do you need to protect? Think about how someone might cannibalize your IP to create a competing product, especially if the invention is an improvement on an existing patent.
When you contemplate how others might unscrupulously take advantage of your IP, it will help you determine whether you also need to add a defensive approach. If someone can take the kernel of your idea and innovate a different solution to the same problem, then you have a good reason to consider including a defensive patent strategy. Defensive patents basically allow you to put a stake in the ground to protect the territory around your main idea which is protected by the offensive patent. You may not ever execute a final product for a defensive patent, but it will help you defend the patents you do create in the related space. Though you will incur costs to create and file a defensive patent, you will unlikely ever license those ideas for profit, but it will prevent someone circumventing your proprietary idea. Give careful consideration as to whether the extra patent fees and expenses are justified before you go down this path.
If you want to play the patent game, be sure you plan the best strategy for staking your claims!