Weak Patents And Squatting:  The Costs Of Ineffective IP Strategy

Credited to www.uspto.gov

Credited to www.uspto.gov

Recently, we discussed protecting intellectual property and how threats to IP can come from a variety of sources.  But being aware of threats and preventing them is only one piece of the puzzle.  Being able to defend intellectual property once a threat occurs is the more difficult task.

It can be especially difficult if you’re working with weak or incomplete patents.  Too often, we’ve seen companies file patents as a defense strategy, but not put the work into making the protection truly valid.  In other cases, a company may be overreaching with a weak patent, in hopes that it will prove to be a deterrent.  While this is sometimes a clever strategy, it can also create problems.

Maybe more problems than the company originally anticipated.  Here are a few:

A Weak Patent May Cost You Your Opponent’s Legal Fees

More and more, courts are discouraging IP squatting by making losers of unsuccessful patent suits pay their opponents’ attorney fees.  Even companies who may be attempting to protect legitimate property could be caught up in this if the patent is weak or off-target.

A Weak Patent May Call Unwanted Attention To An Achilles Heel

Too often, an organization may choose to file a weak patent claim as a smokescreen—if something’s patented, then people would expect it to be defended.  However, with new data tools and normal industry scrutiny, it’s becoming easier and easier to spot flaws in a patent. So it’s becoming simpler for competitors to exploit weaknesses either within the patent (or in the associated product or process) to their advantage.

This isn’t squatting.  It’s actually much worse, because a savvy competitor with a revised process and stronger patent claim could actually put the original patent holder into a squatting position.

Suppose It’s Not A Competitor Squatting, But A Protest Group

Search makes it simple for protest groups to target an idea or company with its own websites (e.g., “thethingyou’reagainstsucks.com”).  While it’s virtually impossible to prevent a motivated protestor from finding a way to be heard, the common strategy of buying possible negative URLs to prevent them being against you can diminish their impact.  However, a weak patent or copyright may encourage a protest group to become more aggressive.

In these cases, the targeted organization is facing two problems—the legal problem of defending a weak position, and the public relations problem that defending the position actually calls more attention to the protest. And a protest against a weak case gains legitimacy.

Ways To A Stronger Patent Strategy

Even if you’re dealing with a weak patent situation in your organization now, there are things you can do to strengthen it.

Protect more than one element of your product or process when possible If you have innovations at more than one step of the product or process, protect them all.  Someone attacking or squatting at one point may find they don’t have the claim or resources to handle multiple conflicts.

Defend instances that create precedents.  If you find IP under siege from multiple sources, concentrate on the challenges that have the strongest possible of defense—and which might create precedents that discourage further action.

Reassess your patent creation.  Patents that are weak start out that way.  Do you need to create them in the first place?  Or do you need to invest more time into how you define and create patents so they are more defensible?  This may ultimately be the most important task.

What do you want to build today?