Photo Credit: Miradortigre via Compfight cc
Using an old tactic, Procter & Gamble will reduce the number of products per package to increase profitability. (‘downsizing’)
According to the WSJ, this is in an attempt to recoup costs of innovation without increasing per package price for consumers in these difficult economic times.
Does this have anything to do with IP Strategy?
Strategy is about achieving objectives, and whilst you need to adjust your strategy from time to time, it can be pretty hard to achieve what you set out to if the business alters key assumptions along the way.
Here we have a brand built on the message of quality and backed by a large IP Estate.
What message are you giving to consumers who now get less diapers in that brand they trust and always buy?
If you’re that in-house IP Strategist, you may not have any input on whether such tactics will be used, but you may be involved in optimising the strategy from the IP perspective.
Perhaps it would be good to ask why are we adding expensive technology in a price sensitive market?
Perhaps we should deploy the new technology with a different strategy?
For example, perhaps it would be better to give people a choice. Consumers can purchase the same product with the older technology and pay the current price, or, if they want the improved performance, they can pay more for it. Clearly there are some IP Strategy opportunities right there – the new sub-brand for the higher performance version, etc. (Perhaps even use a three tiered approach.)
Another approach would be to take another look at innovation designed to lower manufacturing and other costs that are built into the product.
What would you do?
A quick personal note to apologise to our faithful readers for the lack of posts from me on this blog recently.
I am currently travelling for a year with my family. While I’m keeping up with clients and their needs, as always, I don’t have as much time for other activities, like getting out to conferences or this blog.
I have some ideas for thought-provoking posts and will get them up here as soon as I can.
The team at Think IP Strategy has been kicking around their list of top IP mistakes. We’ve listed them here for you and we’ll give you a more detailed post on each and everyone.
What would you add? We’ll happily do an extra post on any new ones you suggest.
(They are in no particular order, because as you know, that depends on context.)
6. Infringe IP
10. File Too Late
34. Fail to Monitor IP (suggested by ‘mc’ – see below and thanks again)
35. Fail to Abandon IP (suggested by ‘Chuit’ – see below and thanks again)
36. Fail to Value IP Literacy in Staff at all levels (suggested by ‘Ruth Soetendorp’ – see below and thanks again)
37. Fail to include IP Awareness on staff training agenda (suggested by ‘Ruth Soetendorp’ – see below and thanks again)
38. Fail to communicate IP Strategy as part of your marketing plan (suggested by ‘Dids MacDonald’ – see below and thanks again)
39. Claim too much (in patent claims) [And I would add, 'or too little', and broaden this to Trade Marks and Designs as well.] (suggested by ‘Naim Kuhn’ – see below and thanks again)
40. Fail to clearly assign IP responsibility within the organisation (suggested by AJ with slight modification – see below and thanks again)
46. Think that there are only 50 IP mistakes that you can make (suggested by Philip Argy – see below and thanks again)
50. Fail to lead
I received a great question at an IP strategy training course I taught. The question was about the difference between a strategy, a plan, and a process. It came about because while we expect on paper most people could match these three words to their appropriate definitions, in practice, they get confused. So to address the definitions in practice, I thought it might be fun to examine their purpose for their employer.
A strategy is a solution to move from where you are now (A) to where you want to be (B)…or put another way, it is what you want to happen to achieve an end. Strategy is a class of solution that deals with uncertainty – the possibility that opposing forces may inhibit you reaching (B) or reaching it in acceptably good form.
A strategy should raise the probability that its employer will reach (B) in good form. It does so mostly by creating conditions that favor success. For example, a strategy can be that you will only support businesses where you can be a first or second tier player, where your objective (B) is to build a product solutions portfolio that fits that defined nature. Building a portfolio of first or second tier only product solutions is what you want to do. It is a solution to a problem associated with running a type of business that you determined third or less tier product solutions will not support. Your strategy does not specifically say how you will arrive at this end. That is where your plan comes in.
A plan is how you will move from (A) to (B). As such it should support your strategy by providing a way to reach (B) that provides an acceptable balance of risk and reward. So your strategy is what you want to do and your plan is how you will do it. For example, you may decide as a strategy that you need to acquire lots of patents in an area to help you maintain freedom of operation, and then your plan is how specifically you will do that…R&D, acquisition, license, etc. This is, of course, oriented on the level of organization you are dealing with. Company, divisional, team, and personal plans and strategies take place simultaneously, which creates issues of alignment that we can cover in a future post.
Understanding the difference between a strategy and a plan allows you to make useful strategic planning decisions that separate the two. It allows you to act in line with General George S. Patton’s insightful quote, “Never tell people how to do things. Tell them what to do and they will surprise you with their ingenuity.” You can include statements of intent within your planning so that when plans go wrong, which they often do, people can adjust their how-to-do-it (the plan) in a way that makes sense with what you want them to achieve (the strategy).
A process, in contrast, is a defined way of doing a task. It can be a linear in nature – do A, then do B, then do C – or it can have branches – do A, then B, and then C or D depending. A process sets strict parameters to the “how” that can, if misapplied, allow the “how” to take priority over the “what.”
Since a process is so anchored in the “how,” it can never be a strategy. If used well, a process can be an essential part of a strategy. For a strategist, the chief purpose of any process is to drive out uncertainties that do not need to be there within a plan. For example, no matter the strategy and plan you chose regarding IP, you want to anchor that strategy and plan on good IP. As a part of a strategy and plan you can set processes in place for idea review, documentation, and protection that assure you will have the quality of IP protection you need as circumstances arise. Then you can address all the uncertainties of what competitors, partners, and customers may do to challenge or advance your IP portfolio without also having undue uncertainty about whether you can present good IP documentation when you need it.
So when you do strategic planning for IP, you and consulted team members first determine what you want to do – your strategy. You next determine or appropriately delegate how you want to do it – your plan. You and your team then look at all the uncertainties associated with your strategy and plan with the mindset to drive out those uncertainties that do not need to be there. To drive out uncertainties, you may incorporate processes – often as simple as checklists – so that those executing your strategy can focus their talents where uncertainty remains. You do all of this in context with your opposition because you can win or lose any strategic contest on any or all or your strategies, plans, or processes.
Image credit: Hemera
It doesn’t really matter how strategic you think you are, if you can’t access a pragmatic and clear construction of patent claims, you’re in trouble.
While patent terms always come back to the context of the specification itself (and the file history in some countries), Oxford’s Thesaurus of Claim Construction is a very handy addition to your armoury if you need to get to grips with patent claims. Co-authored by Stuart Soffer and Robert Kahrl it provides a very useful set of alternative constructions of words and phrases with citations from US patent cases and brief commentary.
This two volume set also has insightful sections on means plus function elements, design patents and how to determine what ‘ordinary skill’ really means in the context of the patent you’re looking at. With an index that runs to over 200 pages, it’s also easy to find everything.
From all of us at Think IP Strategy, we wish you peace and joy this Christmas and we hope that 2013 holds much happiness and many successes for you!
Image credit: Y0$HlMl
Guest post by Robert Cantrell
R&D planning is a misnomer given the truth that no plan survives first contact with adversity. R&D involved experimentation, which essentially means to try something and see what happens because you don’t already know for sure. So really you do not plan R&D much beyond setting a budget and a commercial direction on which to orient some of that experimentation. To illustrate, one of 3Ms commercial directions is to build superior adhesives. There will be considerable thought put into how to do this inclusive of adhesive characteristics that management would like to have and sell. There will then be some deviation on the actual results obtained during experiments, but it will likely align with the direction of superior adhesives. What the company wants is superior adhesives with differentiators at the point of sale that make a product better, faster, or less expensive. How specifically R&D delivers on that is not necessarily the most important part as long as commercially valuable differentiators exist and the results generally carry the company along toward where innovation in the field will go in the future. Differentiators at the point of sale, the innovative path, and commercial viability all work together in a product solution that enhances the customer experience on receiving given benefits, all of which are protected by a network of IP to secure the rational and emotional elements of the product solution that matter.
Image credit: B Tal
Guest post by Robert Cantrell
The introduction of IP to any given product solution should have, as a reason, to make the product solution somehow more saleable than it would be without the IP. This means that the product solution should be somehow better, faster, or less expensive than the product solution would be without the IP, or, in the case of a brand, that the product solution will have an emotional appeal stronger with the brand than without it. It is never enough, therefore, to develop IP without having in mind how it will be sold to individual customers. You cannot know otherwise, for illustration, that IP you protected that allows a product solution to deliver some benefit faster than the previous state-of-the-art model will actually matter to an end user at the point of sale, especially if the improvement drives up the cost to the customer; or if a present improvement does not matter to most customers logically, then it can be made to matter emotionally – in the spirit of why people may want to own the latest pad, car, or camera when their current model performs well enough.
While not a black and white delineation, when improving a saleable benefit, patent, trade secret, and copyright IP will tend to focus on the logical improvements of a saleable benefit, while brand and trademark IP will tend to focus on the emotional appeal. It is never enough to have one without the other – the IP strategy should account for how to protect the logical reasons why a product solution is better, faster, or less expensive than other options at the point of sale and also protect aspects of the product solution that make it emotionally appealing to own. Understand the comparative advantages and disadvantages of the product solution for which your IP is a part and build your IP strategy accordingly.
Image credit: s_falkow
Here is Think IP Strategy’s weekly selection of top intellectual property news breaking in the blogosphere and internet.
Highlights this week included:
Please join the discussion by adding your comments on any of these stories, and please do let us know if you think we’ve missed something important, or if there is a source you think should be monitored.
Global – General
A historical look at open innovation (IPKat)
Global – Trade Marks / Brands / Domain Names
The Trademark Clearinghouse and new gtlds – ICANN update (IPKat)
Global – Patents
Building fast track harmony: a proposal for a global green patent highway (Green Patent Blog)
WHO denies industry money unduly influencing noncommunicable disease fight (IP Watch)
Wellcome Trust tells WHO it opposes R&D Treaty and the de-linkage of R&D costs from drug prices (KEI)
The ‘access to medicines’ debate: throwing patients without cures under the proverbial bus (BIOtechNOW)
Soft stance on patents would cost Apple’s shareholders hundreds of billions of dollars (FOSS Patents)
Patent deals will exacerbate Android fragmentation unless Google secures global licenses (FOSS Patents)
Global – Copyright
Building an innovation-based economy with Creative Commons (Creative Commons)
Canada set to endorse the concept of a WIPO Treaty for the Blind (EXCESS COPYRIGHT)
Distance education for blind people opposed by a White House responsive to MPAA (KEI)
WIPO’s Broadcasting Treaty: still harmful, still unnecessary (Creative Commons)
Red nose trade mark brings two charities, National SIDS Council of Australia and Cure Kids, to blows (IP Whiteboards)
Subsequent entry biologic litigation set to take off in Canada (IP Osgoode)
Competition for Viagra on the rise (EXCESS COPYRIGHT)
Supreme Court serves stunning reminder of patent bargain in Viagra case (Michael Geist)
Pfizer seeks amendment or re-hearing of Supreme Court of Canada’s Viagra judgment (Excess Copyright)
Canadian broadcasters seek overhaul of radio copyright fees post-C-11 & fair dealing decisions (Michael Geist)
Ecuador issues a compulsory license on abacavir/lamivudine on 12 November 2012 (KEI)
Yet another SPC referral to the CJEU – AstraZeneca v Comptroller General of Patents EWHC (gefitinib) (Kluwer Patent Blog)
CJEU to consider copyright implications of linking and framing: Nils Svensson, Sten Sjögren, Madelaine Sahlman, Pia Gadd v Retreiver Sverige AB (Case C-466/12). (The 1709 Blog)
Emerging practice of the European Patent Office on stem cell inventions (Patent Docs)
Does Oracle ruling breach WIPO Copyright Treaty?: Case C-128/11 Oracle v UsedSoft (The 1709 Blog)
When can a CPVR holder request information from a supplier?: General Court rules in Case C-56/11 Raiffeisen-Waren-Zentrale Rhein-Main eG v Saatgut-Treuhandverwaltungs GmbH (IPKat)
General Court: photos.com lacks distinctive character: Case T- 338/11 (Class 46)
Patent exhaustion and possible EU intervention at issue in German Samsung v. Apple SEP lawsuit (FOSS Patents)
Samsung attacking Apple’s screen-to-speech functionality with German patent (FOSS Patents)
Munich court skeptical of Nokia patent assertion against Google Talk (FOSS Patents)
Ghana opts for the WPPT (Afro-IP)
Bayer makes an attempt to nix NATCO’s CL for Nexavar (Spicy IP)
Madras High Court rules against ‘safe-harbour’ for ISPs – a victory for copyright owners (Spicy IP)
Dangers of ex-parte interim injunctions, in full display, in patent litigation between Issar Pharmaceuticals and Ind-Swift (Spicy IP)
Indian Patent Office (IPO) publishes guidelines for Indian patent applications relating to plant (herbal) compositions (IIPRD)
IPAB on Payyannur Ring geographical indication: SubhashJewellery v. Payyannur Pavithra Ring Artisans (Spicy IP)
Government of India’s brand vs. generic drugs tell of today’s conflicts and reality (Profitability Through Simplicity)
Supreme Court hands down decision concerning novelty in patent case brought by PT Mitra Chemindo Sejati (IP Komodo)
Copyright in design in Italy:a post-Flos review (The 1709 Blog)
Bogarting Court of Appeal finds infringement of Valsartan process patent: Actavis v Novartic (EPLAW)
Hardware providers sue Dutch government over private copying levy hike (The 1709 Blog)
Rwanda to run its own ccTLD (Afro-IP)
Supreme Court clarifies TRIPS applied in Spain since 25 January 1995 (Kluwer Patent Blog)
Private copying in Spain: a new look for fair compensation rules (The 1709 Blog)
UK government considers broadening bolar exemption (Patent Docs)
Open Rights Group applies to defend citizens against copyright trolls in Golden Eye case (TorrentFreak)
ISPs will first determine whether public Wi-Fi providers are subject to anti-piracy code, Ofcom says (Out-Law)
Fewer than a quarter of infringers would be put off by internet access suspension threat, Ofcom report says (Out-Law)
Peers take issue with Government proposals on orphan works, collective licensing and copyright exceptions (Out-Law)
Total write-off for YouView mark: EWHC (Ch) decision in YouView TV Ltd v Total Ltd (IPKat)
EWCA: When calculating an “account of profits” it is not permissible for defendant simply to allocate a proportion of general overheads to an infringing activity, in order to reduce profits payable to rights holder: Hollister v Medik Ostomy (EPLAW) (IPKat) (IPKat)
EWPCC: Continuing an action after the patent content is resolved: Ningbo Wentai Sports Equipment Co Ltd v Wang (PatLit)
BIO and ASTA announce that GEMAA is now effective (Patent Docs)
FTC and the DoJ to host public forum on patent assertion entity activies (Ars Technica)
Congress to tackle potential AIA fixes? (Patents Post-Grant)
US patent chief to software patent critics: “Give it a rest already” – Says explosion of smartphone patent litigation is “natural and reasonable.” (Ars Technica)
“Your criticisms are completely wrong”: Stallman on software patents, 20 years in – Free software guru makes a still-unpopular plea with new urgency—just ban them (Ars Technica)
Stallman’s got company: Researcher wants nanotech patent moratorium (Ars Technica)
APJs need to clarify the pro hac vice standard (WHDA)
US Patents – Decisions
CAFC finds lack of sufficient structure to support means-plus-function claim language, reverses District Court: ePlus v Lawson Software (GRAY on Claims)
CAFC affirms ITC finding of no section 337 violation in Norgren v ITC (ITC 337 Law Blog)
Linking pigs and humans through the enablement doctrine – CAFC decision in Edwards Lifesciences v CoreValve (Patently-O)
CAFC: Can you wait 20-years to challenge inventorship?: In this case, yes: Pei-Herng Hor and Ruling Meng v. Ching-Wu “Paul” Chu (Patently-O)
CAFC: Transocean v. Maersk, Part II: Secondary indicia of nonobviousness outweigh prima facie case of obviousness (Patently-O)
District Court Columbia denies equitable tolling, Fifth Amendment taking in Novartis patent term adjustment case: Novartis AG v. Kappos (PharmaPatents)
SD California: Violation of RAND obligation may constitute patent misuse or unclean hands: Multimedia Patent Trust v Apple (Docket Report)
CD California: Summary judgment of noninfringement against “patent troll” who filed “hundreds of lawsuits” did not warrant award of attorneys’ fees: ArrivalStar v Meitek (Docket Report)
US Patents – Lawsuits and strategic steps
AbbVie – AbbVie, Abbott Respiratory files patent infringement complaint against Watson in response to Para IV challenge regarding Niaspan (niacin XR) (Patent Docs)
Apple – Apple ordered to disclose patent settlement wit HTC (Ars Technica)
Apple – Google loan patents received special treatment under Apple-HTC settlement (Ars Technica)
Astellas US – Astellas files patent infringement suit against Akorn in response to Para IV challenge concerning Adenoscan (Patent Docs)
Chicago Board Options Exchange - Chicago options market goes nuclear, files $525 million patent suit (Ars Technica)
Ericsson – New Ericsson lawsuits against Samsung indirectly help Apple in fight against FRAND abuse (FOSS Patents)
Ferring – Ferring files separate patent infringement suits against Watson and Apotex in response to Para IV challenge concerning Lysteda (transexamic acid) (Patent Docs)
HTC – What’s HTC paying Apple for patents? Not an “outrageous” $8 per phone (Ars Technica)
HTC – Apple-HTC license agreement would terminate automatically after change of control (FOSS Patents)
Liberty Mutual – APJs refuse to consider redundant proposed grounds for rejection in covered business method petition: Liberty Mutual v Progressive Casualty Insurance (WHDA)
Life Technologies – Life Technologies sues Promega for infringing reissue patent claiming fluorescence-based nucleic acid analysis (Holman’s Biotech Blog)
Litepanels – ITC decides to review initial determination in Certain LED Photographic Lighting Devices (337-TA-804) (ITC 337 Law Blog)
Merck Sharp & Dohme – Merck files patent infringement suit against APP Pharmaceuticals in response to Para IV challenge concerning Integrilin (eptifibatide) (Patent Docs)
MicuRX – MicuRx Sues USPTO for patent term adjustment under Exelixis (Pharma Patents)
Millenium Pharmaceuticals – Millenium files patent infringement complaint against Accord Healthcare in response to Para IV challenge concerning Velcade (bortezomib) (Patent Docs)
MobileMedia Ideas – Apple will not face trial on MobileMedia claims amended in re-examination (WHDA)
Samsung – FRAND issues key to ITC review of preliminary dismissal of Samsung’s complaint against Apple (FOSS Patents)
Samsung – Samsung extends infringement claims to iPad 4, iPad mini — judge allowed this beforehand (FOSS Patents)
Samsung – ITC decides to review initial determination in Certain Electronic Devices (337-TA-794) brought by Samsung against Apple (ITC 337 Law Blog)
SAP America – A first glimpse on the scope of discovery in the new post-issuance PTO proceedings: SAP America v Versata (WHDA)
SAP America – APJs deny pro hac vice admission of litigation attorney to PTO bar: SAP America v Versata (WHDA)
U.S. copyright surveillance machine about to be switched on, promises of transparency already broken (EFF)
How ISPs will do “six strikes”: Throttled speeds, blocked sites (Ars Technica)
RIAA hammers Google with DMCA takedowns in six strikes prelude (TorrentFreak)
US Copyright – Decisions
CD California smacks down another “Avatar” copyright infringement claim: Schkeiban v. Cameron (Technology & Marketing Law Blog)
US Copyright – Lawsuits and strategic steps
reFX Software – First software maker joins bittorrent lawsuit bonanza (TorrentFreak)
Third Degree Films – Porn copyright troll sues Verizon, angry it won’t cough up user names (Ars Technica)
Expert report on the value of consumer review websites and 47 USC 230 (Technology & Marketing Law Blog)
US Trade Marks – Decisions
CAFC affirms T-T-A-B’s dismissal of cancellation petitions aimed at VILLAGE PEOPLE registrations: Karen L Willis v Can’t Stop Productions (TTABlog)
TTAB affirms genericness refusal of PARTNER SERVICES for business consulting: In re ScanSource (TTABlog)
TTAB sustains mere descriptiveness opposition to WOMEN’S RUNNING for fitness website: Wet Dog Media v Rodale (TTABlog)
US Trade Marks – Lawsuits and strategic steps
AmeriGas – AmeriGas gives up its lawsuit against PissedConsumer (Technology & Marketing Law Blog)
The Oatmeal – The Oatmeal sued over trademark by “Oatmeal Studios” (Ars Technica)