Companies need to ensure – when seeking intellectual property rights for technologies – that they have a clear linkage to a product of interest to the company. Companies also want to avoid pushing forward technology to be patented too early – when it is at a a stage of development before the technology has been fully developed into a product concept. A company can shoot itself in the foot by having an early patent that might not adequately protect the product from competitors while alerting them to the technology.
Companies sometimes spend a huge amount of money on intellectual property protection even when that protection is not relevant to the core business objectives of the company. In other words, they waste resources that could be better applied for the benefit of the company if done so in a more strategic manner.
Working with intellectual property is like a knife-edge you have to walk. You want to file patents as early as possible to ensure that you have freedom to operate with your invention and that you own the invention. At the same time you want to file as late as possible to ensure that the lifetime of the patent is as long during the commercial phase as possible. Also, it can be valuable to demonstrate and flesh out intellectual property so that you can get stronger and broader claims.
Likewise, there is a balance between filing early to ensure that you own the technology and have freedom to operate and waiting as long as you possibly can to have maximum benefit from that technology. If you have not fully developed that technology to the point that you actually have created a product, you may fall into this trap of potentially establishing a barrier to your own subsequent inventions.
As an example, take a firm that is developing a product. Early patent applications are filed, discovery is made but the product hasn't been fully developed. Still, the scientists throw it over the fence to the patent attorney. They have described a process that can be used to develop a product for a particular use. So the patent gets published. They haven't actually described that product, though. They just say it can be done.
So, two or three years later, that same research organization actually exploits the technology. They create the product that originally was envisioned. And they try to get a patent application covering that product, which is a specific product that can add value to the company. But their old previous patent that envisioned being able to create that product is now what is known as published prior art that prevents them from getting patent coverage when they actually get the product.
Sometimes a company will make a discovery, or an invention, and will file a patent on it, but there's no further technology resourcing to support and continue to build out that product concept. And so they have a patent, or a family of patents, and they'll spend hundreds of thousands of dollars protecting them, but they never follow up with the resources to convert it into a product.
One solution is to have a senior member of your business strategy team be part of the "yay or nay" decision-making on filing for patents. Very simple to execute. That person doesn't need to understand the technology. He or she doesn't need to understand the details of patent law, which is different in the U.S. from the rest of the world and which makes it more complicated. This person simply has to be convinced that the intellectual property, for which somebody's going to ask the company to spend several hundreds of thousands of dollars on over the next few years, actually can be reasonably linked to a product that the company can sell. Just that little tiny bit of rigor could greatly reduce the amount of wasted resources that occur in the company on intellectual property protection.