Intellectual Property is the global currency of innovation. Whether you are a start-up, development stage, or mature company, intellectual property is likely among your most valuable assets.
Intellectual property is intangible. This makes it hard to value. Patents are complex. They are one of the few exceptions to competition laws worldwide. And, they can be extremely powerful, both as an offensive weapon and defensive shield against competitors. But how do you know you are getting good value?
Patents are complicated for two reasons. First, the market for legal services is very competitive. Vigorous competition benefits inventors through greater choice and lower prices. The price of patent preparation and prosecution (the process of getting a patent) services has been relative constant for decades. But competition has also introduced wide variability in the quality of legal services.
At the same time, Patent Offices and Courts are tightening the requirements to get broad patents. International harmonization has increased predictability but also “raised the bar.” Courts, particularly in the United States, are imposing more stringent requirements on patents. Patents must have an adequate written description. They must adequately support the full scope of the claims. And, they must distinguish the invention from prior inventors’ work.
At the same time, information is becoming more readily available. Information about prior inventors’ work that in the past could not be found through even an exhaustive search can now be located with the touch of a button. Electronic translations are readily available. Patent Offices are cooperating much more effectively. All of this makes it harder to get broad patents. But as with most things in life, you get what you pay for. Patents written without careful thought and on a shoestring budget likely aren’t worth the paper they are printed on.
What is patent quality? This question is particularly relevant to the business community having suffered more than a decade of litigation involving questionable internet and telecom patents. Two years ago, the author attended several of the U.S. Patent and Trademark Office’s Quality Initiative Public Hearings. In a private discussion with the then-Director, we discussed patent quality. The author’s answer as a trial lawyer is simple: A patent must survive the challenges that await it. There are essentially five points in the life of a patent when it will be challenged.
Quality boils down to your patent’s ability to survive all these challenges. Invest the resources appropriate to the significance of your invention to your business. Draft the application carefully. Adequately describe your invention. Differentiate it from prior inventions. Anticipate how others will design around it. A patent that survives these challenges is truly a high-quality patent.
Originally printed in Haaretz Cyber Magazine on March 27, 2018. This article is for informational purposes, is not intended to constitute legal advice, and may be considered advertising under applicable state laws. This article is only the opinion of the authors and is not attributable to Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, or the firm’s clients.
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