Spend too much to protect too little (no. 14 in our list of IP mistakes)
Focus on the effect you wish your IP to have, not on the IP itself.
On many occasions during IP strategy training courses I have given, I have suggested that patent strategists learn how to play the Chinese game of Go. Go is a well-known game of strategy in the East, just as Chess is in the West. The mindset needed to win the game of Go is similar to the mindset needed to win in IP strategy. You want to claim as much space of value as possible with the smallest number of resources prudent for the effort.
A common mistake in IP strategy that is also common among novice players in the game of Go is to dedicate too many resources to protect too little space unnecessarily well. This mistake is hard to diagnose. Who can say how much protection an invention or idea needs until a court puts it to the test, at which time no one is likely to fault you for being overly strong at that point?
Still, spending too much to protect too little can limit your freedom of operation and put you at risk of infringing IP obtained by other entities in space you left open.
Let’s look at patents to illustrate.
Expanding your scope of protection for the money starts at the invention review process. First, you want to determine whether you actually need the right to enforce exclusivity against others for given inventions, or whether you just need to maintain freedom of operation. So for example, if freedom of operation is all you need, you may achieve that globally at a fraction of the cost by using a defensive publication, and then use the money saved to protect other inventions. Instead of patenting an entire system of technology, you can often just patent key components that you would be able and willing to defend in court, and then look at defensive publications and trade secrets to cover the rest.
Next, consider psychological as well as logical defences. I have observed that patent practitioners tend to overly focus on the logical side of their IP protection and under leverage the psychological side.
Here is an example.
If you work in a fast moving industry, and let’s suppose you have ten patentable inventions to protect, then you may be able to achieve the same result of keeping competitors at bay with one patent and ten defensive publications that you could achieve with ten patents if you consider the psychology of your competitors. Provided your organization has a reputation for enforcing the patents it has, and provided you sometimes have patent applications filed for inventions disclosed in defensive publications, then your competitors will be left guessing for 18 months whether or not there is a patent behind any of the defensive publications you had published. How willing are they to take the risk? By the time 18 months goes by, this of course being the time period that patent offices keep patent applications secret, you may already be on to the next level of technology.
Remember that with any IP strategy, you should focus on the effect you wish your IP to have, not on the IP itself. Then ask how much IP and what kind you really need to achieve a desired effect. The less IP expenditure you need to make to achieve a desired effect in one area, the more resources you may have left to secure and defend IP claiming more IP territory.
(This is number 14 in our list of IP mistakes and how to avoid them.)
[Image credit: oblivionz]