Discrete versus Complex
DISRETE TECHNOLOGIES are, by definition,
those technologies protected by a single patent (or very small family
of patents all owned by the same entity. In general, pharmaceuticals,
chemicals, and certain manufactured goods fall into the category of
discrete technology. Discrete technologies are characterized by:
1. a one to one (or very few to
one) correspondence between the patent and the product.
2. all of the patents are owned
by one company; there is no need for design freedom or litigation
3. a single patenting objective near
term competitive protection: block substitutes, profit will be realized
through product sales; cross-licensing is not an objective.
4. a straightforward patenting
strategy: create a “thicket” of patents so that no one can make,
use, or sell the product, or any suitable replacement of the product,
without infringing the company’s patent or incurring prohibitive
5. a clear strategy for licensing/enforcement
strategy: aggressively pursue infringers.
6. relative ease in determining
the value of the patent, or group of patents.
Because near term competitive protection is
essentially the only corporate objective, the patenting strategy is
to obtain patents on inventions which the company uses in its own products.
In this situation, the Invention
Strategy produces a portfolio of patents well-suited to the business
needs of the company.
COMPLEX TECHNOLOGIES present an
entirely different challenge. In complex technologies, like wireless
communications, computers and software, which involve the integration
of many different technologies covered by many patents which are owned
by many companies (competitors and interlopers alike) near term competitive
protection is far less of a priority than litigation avoidance or design
freedom. COMPLEX TECHNOLGIES are characterized by:
1. a many-to-one correspondence
between the patent and the product.
2. patents essential to the product
are owned not only the company itself, but by others as well.
3. patenting objectives are many
and difficult to rank: design freedom and avoidance of litigation
are often primary objectives.
4. a patenting strategy which
is not obvious and difficult to formulate or articulate in simple
5. a licensing/enforcement strategy
is unclear; there will most likely be a mix.
6. immense difficulty in determining
the unbundled value of any particular patent or group of patents.
In complex technologies, companies
must form alliances, work together in standardization fora, cooperate
to produce products with assured interoperability, gain access to other’s
technology, and make their own technology available to others in a
controlled manner; all the while gaining and maintaining competitive
advantages wherever possible.
A strategy of obtaining patents
on inventions that arise from R&D will not produce the diversity
of patents needed, nor will it satisfy even the main business objectives.
In complex technologies, the portfolio
of patents must be purposefully engineered and tailored to the diverse
business needs of the company. Relying on the Invention
Strategy is relying on random chance.