Is a Patent Defensive?

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Is a patent defensive?  On the surface, yes, it is.  It allows the patent owner to enforce (defend) the exclusivity of an invention. Strategically, however, a valuable patent is more an offensive tool than a defensive tool. It is a way to enact the classical strategy principle of the offensive defense, which means to take a position that is important to an opponent, and then build a challenging defense around that position that the opponent will find costly, perhaps too costly, to overcome.

In the classical strategy sense, patents are much like castles in the middle ages that warlords used to claim land. A well placed castle forced opponents to either attack the castle, often at prohibitive cost, or to live with that castle through avoidance, tribute, or an alliance with its owners.

Likewise, a valuable patent will stake a claim in the intellectual property space, and will have value if at least one other entity of merit would like to own that space, meaning the opponent will have to attack the patent, avoid it, pay tribute, or establish an alliance. All four of these actions, if you commit to enforce your patent, present an opportunity to monetize the patent, here speaking broadly on the range of value that a patent can deliver, from the high profits of enforced exclusivity on commercially valuable inventions to open licenses.

Even when an organization declares its patents as purely defensive, it should consider an IP enforcement program. It is a natural extension of the granted right to enforce exclusivity that the owning entity have an IP enforcement program.  An IP enforcement program offers three key benefits:

1.    It causes potential opponents to respect the patent position, thereby making the position a defense of merit – a “no trespassing” sign to be respected and not ignored.

2.    It creates a discipline of drafting high-quality patents, given that an IP enforcement program will ferret out those patents that do not have value either because no one else cares about the space or the patent is not enforceable – lacking an IP enforcement program, low quality patents can represent a significant percentage of the portfolio.

3.    It can deliver revenue and profits that would otherwise be money in the pockets of other entities – and the profit margin tends to be high.

As with so much in IP, an IP enforcement program begins with solid IP research.  IP research allows you to understand the opportunities and the challenges inherent in your position so that you can make good decisions and take good actions that do not leave value on the table.

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Robert L. Cantrell
Robert L. Cantrell

A patent strategist, Robert Cantrell is the author of “Outpacing the Competition: Patent-Based Business Strategy” and “Understanding Sun Tzu on the Art of War”.

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