Identify Prior Art to Support Patent Prosecution

There are many millions of patents in the world. Trying to make sense of opportunities or understand the direction a particular industry is going in by analyzing all the relevant patents is called patent landscaping. On a basic level, the patent landscape is who owns which patents in which countries and what these patents cover.

To make a patent landscape relevant to you and your business, look only at patents in your field or a connected one. This is still a vast amount of information but knowing which industries you need to be aware of and better understand is the first step in the process.

Why is Patent Landscaping Important?

The central principle behind patent landscaping is the acquisition of knowledge. It is the knowledge of what patents exist where and what they cover. The advantages to this are numerous.

Being able to view and understand the patent landscape can alert you to a potential infringement in your company or one that may occur depending on future business decisions. Conversely, you may find patents in this way that potentially infringe your rights and damage revenue streams.

A major reason to conduct patent landscaping is to avoid infringing the patent rights of someone else. Patent litigation is extremely costly and best avoided. Due to the huge amounts of patents in existence the prevalence of Patent Assertion Entities (PAE) is growing and their activities are becoming bolder.

PAEs are company’s who generate revenue from purchasing patents and then attempting to bring about litigation from firms they believe may have infringed the rights. It is a very valid concern to look out on a patent landscape and wonder if you might be infringing a patent accidentally. In some circumstances, a PAE might acquire a patent with specific claims within it purely to use for litigation at a later date. Since this is the environment which exists it is important to be prepared to meet the threat.

Contrary to the spirit of patents being granted to encourage innovation, creativity and economic growth it can be argued that PAEs are damaging the economy. When a conflict is found these companies will have no interest in reaching a cross-licensing agreement with the company they think is infringing their rights.

Cross-licensing agreements are an intentional consequence of the patenting system. The conflict between the patents pushes companies to come together and work on agreements. This kind of activity is considered beneficial to society, technological advancement and the economy. An agreement of this nature will not be possible with a PAE.

Whatever your feelings about the practices of PAEs the threat they pose is very real and must be provided for in your overall intellectual property strategy. You must be aware of avoiding the patents they hold, and if challenged you want to invalidate their claims.

If you are not dealing with a PAE, and you make an infringement you can potentially come to a cross-license arrangement with that company. They may be willing to work with you or at least license out the relevant rights to you.

If in turn, another company infringes upon your intellectual property rights you have the choice to make an agreement with them. In fact, some companies seek out patents specifically to force other companies into making a cross-licensing agreement with them. If you both want to make products that require the rights you hold between you then clearly it is in both your interests to reach an agreement.

Lastly, patent landscaping allows you to identify white spaces. If there is a gap in the patent landscape it may be in your company’s interests to apply for a patent in that area. The white space analysis methodology will alert you to areas where. Licensing potential exists.