An act of deception has won many a military battle – from Sun Tzu to the Trojan Horse, from Alexander the Great, Hannibal or Napolean to the Spaniards defeating the overwhelmingly more numerous Incas.
Here are some examples that I have seen deployed to mislead a competitor – what would you add?
- Creating a ‘smokescreen’ of patent filings covering technology of lesser commercial interest to make it difficult to ascertain the actual technology direction or new product under development.
- Creating a similar ‘smokescreen’ of trade mark filings to protect a new brand or new category for a brand.
- ‘Leaking’ misleading information to a known informant.
- ‘Seeding’ competitive intelligence sources with additional information that whilst true, suggests a direction or strategy other than the intended course
Deceptive practices always carry the risk of breaching anti-trust / competition law and, in my view are rarely warranted. But don’t let an opponent out-manoeuvre you by deception. Look for facts, and specialist, local knowledge and verify them.
It’s been widely said (and attributed to Peter Drucker), that culture eats strategy for breakfast.
Whilst Mark Fields made that particular phrase popular, Drucker definitely made it clear that culture will block attempts to implement a strategy that is incompatible with it.
So what does that mean for IP Strategists?
If you try and implement a strategy that is counter cultural for your organization – you will fail.
For example, try getting that team of hip, open source guru, software engineers you hired to build and protect patentable software infrastructure. To them, patents are evil. You need to hire a different group of people. (Sure, you can try modifying their subculture, let me know how you go with that.)
Or try and get the team at that fast-paced marketing focused, brand factory company to pause and check for trade marks before launching their latest brand (or ideally before going too far down the brand development path). Think instead about how you can build that safety check into their current way of doing things.
Everything you do (that’s everything) has to be done with culture in mind.
But that’s only if you want to be effective.
Almost all of my work time is spent working for multi-billion dollar clients around the world. So why do I still bother helping small companies and startups?
Because I believe that collectively they make the greatest contribution to innovation and because every time I have a conversation with them, I get a variation on the same story. They have tried working with [name brand] firm and they feel like they have spent a great deal of money and got very little or nothing in return.
I can usually only offer a half hour call, and we usually manage to define a new world view together which sets them on a better path – one which is business focused, and strategic.
So what do we chat about in that half hour? Here is a small glimpse of some of the precepts that come up time and again:
- Yes in an ideal world, you should get a top patent attorney firm to work with you from day one to draft and file a near-perfect patent / trademark / design specification. Unfortunately, the world is not perfect, and try as they might, an external advisor is never going to understand your business as well as you do. Business strategy first, IP strategy second. If you have no budget for IP protection – and you truly understand what this means, then that’s fine. If you have only a small budget for IP protection, then be clever in doing the best you can with that – that is also fine. If you have to self file a patent / trademark / design, or instruct an attorney to spend a set amount of time to review it – that’s totally fine. It’s your responsibility, your business, your strategy, your future – do the best you can with the resources you have. *This approach transfers to any business decision, and there’s no reason why IP should be different – whether it is protecting IP, to surveillance or enforcement, it has to fit the business.
- IP Strategy is entirely based on your particular context. The fact that a competitor or another company did a particular thing is irrelevant to whether you should do it. (Though a competitor’s actions are always important to understand, it doesn’t mean you should copy them.) Once you deeply understand your business strategy, your IP Strategy will follow.
- Find an advisor who will work with you and educate you along the way. One that is confident enough to let you do as much of the work (and learning) as possible and to shape your intellectual property and your strategy to fit your business. It turns out that this approach allows small companies to spend a lot less, learn a lot more, become a lot more independent and sophisticated as they work with the advisor into the future.
This is the only way that I have found that I can work with small companies.
Unfortunately, due to other commitments, I can only assist a few small companies at a time in this way, but it has been incredibly rewarding in every single instance.
- List key markets in size order.
- Add countries where competitors will manufacture.
- Add other particularly important countries for logistics – eg. is there a country that everyone will have to transit through?
- Review and reorder the list based on overall strategic importance with the above factors in mind.
- Get a quote from your patent attorney or a specialist national phase entry firm (if you’d previously filed a PCT).
- Go down the list until you hit your budget limit.
How do you protect your IP Processes? More importantly, have you ever done a freedom to operate clearance on them?
To kick off this short series of posts, here are a few insights on some of the top ‘patent process’ patent filers, what they are covering, and the most cited patents.
Given my 100 per cent client focus, I couldn’t really do this topic justice but I look forward to further insights from those with more time.
Top 10 assignees of patents covering patenting processes.
Were you aware of all of these companies and their patenting activities?
How confident are you that your own patent processes do not infringe any of these patents?
Top 10 patents by number of forward citations.
Here is claim 1 of the most cited patent covering patent processes:
“1. A computer-automated method for rating or ranking patents or other intangible assets comprising:
selecting a first population of patents having a first quality or characteristic;
selecting a second population of patents having a second quality or characteristic that is different from or assumed to be different from said first quality or characteristic;
providing a computer-accessible database of selected patent metrics representative of or describing particular corresponding characteristics of each said patents in said first and second patent populations;
constructing a computer regression model based on said selected patent metrics, said regression model being operable to input said selected patent metrics for each said patent in said first and second patent populations and to output a corresponding rating or ranking that is generally predictive of the presence or absence of said first and/or second quality in said first and second patent populations according to a determined statistical accuracy;
and using said regression model to rate or rank one or more patents in a third patent population by inputting into said regression model selected patent metrics representative of or describing corresponding characteristics of said one or more patents in said third population to be rated or ranked and causing said regression model to output a corresponding rating or ranking based thereon.”
The more sophisticated a company becomes with its patent analytics, the more patents it will have to dodge, and file. How are you placed in this landscape?
Obviously if you’re not in the business of inventing new patent processes and analytics, then there’s always the option of in-licensing them and there are plenty of great tools out there already. Just check that the indemnity for patent infringement for using the tool is going the right way.
Top 5 IPCs
These are only the top 5 of about 100 IPCs represented in this dataset which is surprisingly large. It’s also interesting to note that the top IPC is 6 times more popular than the fifth most used IPC.
- Data is from 1969 through to 31 December 2015.
- Due to the quick data grab, the data is a little ‘dirty’ so I can’t give you certain insights, such as filing intensity over time. However, I have cleaned out irrelevant records in the data presented here.
Thanks to Taylor Wessing’s brand new Patent Map, anyone can now quickly compare European jurisdictions on key litigation factors.
Those who have litigated in Europe will know that this comparison is at the heart of every strategic litigation campaign, whether seeking to launch a new product (and avoid injunctions) or attempting to stop competitors.
Key questions such as: “Which countries should go first and why, and what’s likely to happen and how long will it take?” are all readily addressed with the new tool.
As I’ve said before, understanding the terrain that you’re operating in is critical to a successful IP Strategy. Well, in Europe at least, taking that step has just become a whole lot more accessible.
Ok, Taylor Wessing, now for the rest of the world…
[image credit: zonu.com]
It’s been a great honour to be a member of the IAM Strategy 300. I was there in the first group (the IAM250) in 2009, and have been there every year since. (Thank you so much for the previous nominations and votes of confidence.)
I think the IAM300 is a great way to let the world know about those at the top of the IP Strategy game and I’m absolutely delighted that this year’s selection will finally include people in in-house roles too. Congratulations to Joff, SJ, Gavin and the team for a wonderful job.
As for me, my practice has changed, I no longer have 22 people in however-many countries around the globe. It’s just me and my fantastic support team. Apart from a handful of smaller clients that I can’t resist, I tend to spend more time working further up the chain, and more in the background these days, and I don’t have time for all of the marketing / business development we used to do.
There are many ‘up and coming’ IP Strategists who would cherish membership in the group and so it’s time to make room for them.
Best of luck to all of the nominees (and yes this blog will continue as and when I get time).
To all of those people kind enough to pause and read my blog posts from time to time, thank you very much for your patience.
I’m now back from 14 months traveling around Australia with my family and am busily catching up on things for my clients.
The trip was incredible, of course, and perhaps if you’re interested I can give you a few highlights over a beer at the next conference I see you at.
I will soon be resuming the posting schedule at duncanbucknell.com, so stay tuned and thanks again.