InnovationPatents

When Does Defensive Patenting Make Sense?

By September 21, 2020No Comments

Organizations don’t always patent an innovation in order to immediately monetize the technology. Companies, especially large ones, may pursue patents on inventions that are adjacent or complementary to their core offerings to keep competitors from using the technology in their products. This strategy is called defensive publishing, and there are multiple scenarios in which an entity may wish to pursue it.

1. Highly Innovative Industries

In highly innovative industries, competitors are constantly inventing new technologies that are very similar to one another. In this situation, a company may choose to patent an invention, even if the business doesn’t envision an immediate use for it within its offerings. This allows the organization to protect the innovative technology from competitors. If the business fails to protect the invention, a competitor may develop and patent the technology, limiting the first company’s ability to use the new product or process. 

This defensive patenting strategy allows organizations to grow their footprint within the technology landscape to include patents for inventions adjacent to the innovations that drive revenue. Doing so allows the intellectual property rights holder to both design products without boundaries and force competitors to design around existing patents, potentially weakening their ability to offer a high-quality alternative.

2. Addressing Customer Needs

A company needs to be able to meet its customers’ evolving needs. Designing around competitors’ patents makes this more difficult. A defensive patent strategy may include protection for incremental technology. This allows the business to serve its customers without the risk of infringing on adjacent patents. 

3. Increased Likelihood of Litigation

Companies in highly saturated and lucrative industries may turn to litigation to protect and profit from their intellectual property. When the chance of an infringement suit is high, a defensive patent can protect an organization. If a competitor attempts to sue a company for infringing on a patent, a defendant with a large patent portfolio will likely have intellectual property that allows it to countersue for infringement of an otherwise little-used patent. Because both parties have potential infringement cases, they may be able to reach a licensing agreement for little to no cost. 

Alternatively, if an organization is known to hold a large IP portfolio, it may avoid infringement claims entirely, as potential plaintiffs are unlikely to risk “awakening a sleeping bear.”

4. Future Revenue Potential

An R&D team’s work may not fit into its organization’s product portfolio immediately. However, the technology may be valuable in the future. Patenting the technology defensively allows the company to utilize it strategically, whether that be bringing it to market, licensing it, or highlighting it during mergers and acquisitions.