When your company acquires patent protection for all technically feasible alternatives to its core innovative concepts, it forces its competitors to come to terms with its potentially insurmountable wall of patents or risk potentially devastating infringement liability.
Some companies believe that all they need to sustain profitability is a few patents. In some cases that might be true, but just like baseball, base hits are much easier to come by than grand slams, or even home runs. So, the winningest baseball teams tend to rely on the accumulated successes of many solid hitters, rather than a lone slugger who can knock the cover off the ball. Consequently, the more patents a company obtains for truly valuable innovations, the more likely it is to earn extraordinary returns on its investments in that patent portfolio.
Taking this diversified approach, your company can and potentially should try to gradually lay a patent minefield against its competitors, with each patent in the portfolio protecting a different aspect of the competitive advantages of your company.
To better appreciate this guidance, consider what your company would do if accused of infringing hundreds or even thousands of claims spanning perhaps dozens of patents. Given how incredibly expensive it would be to investigate and defend against such a challenge, wouldn’t your company be agreeable to nearly any reasonable licensing terms? In fact, corporate giants often use this strategy against each other – essentially keeping the peace by each party owning gobs of patents as leverage (which is also a great way to make it nearly impossible for any new market entrants to avoid infringement). A large corporation might file between 500 – 1000 patent applications a year!
Sometimes an enhanced return on investment can be earned by submitting multiple patent applications instead of one (sometimes even for the same concept). This can be particularly true when:
- A given innovative concept can be claimed multiple ways across several applications, each directed to a different examining group (called “art unit”) at the USPTO, at least one of those art units likely to expedite allowance of its corresponding application;
- There are multiple innovative concepts that can be implemented independently of each other;
- There are alternative, even if somewhat less desirable, ways to implement a given innovative concept;
- There can be functionally distinct actors who might infringe a given innovative concept; and/or
- The art is rapidly evolving, and thus cannot be perfectly known prior to submitting an initial patent application, but will emerge much more clearly after serially submitting several applications.
Taking a strategic approach to preparing and prosecuting its patent applications, your company can obtain patents containing carefully crafted claims that capture the full scope of your innovative concepts, yet avoid common legal mistakes that can invite competitors to simply design-around those patents.