Should We Patent Our Technology?

A common question that is encountered by many companies is whether to seek a patent on their technology. This is especially true of young (e.g., startup) and midsize companies that are essentially building a business around a particular technology that they have developed. Often companies will view the question as a legal one in the sense that a patent is considered an instrument that legally protects a company’s innovations from being copied by others. However, the question as to whether to seek a patent (e.g., invest the time, effort, and money to obtain a patent) should be viewed more as a strategic one.

This is because a patent can be viewed as an option “purchased” on an investment. A patent is an asset of the company, and not simply a legal instrument comparable to a sales agreement, vendor contract, employment contract, and the like. A company often obtains a patent in anticipation that it will be used sometime in the future to create value. For example, a patent can provide “defensive” value in that the patent can act as a shield to protect a company from litigation. More specifically, a patent can deter other companies, such as competitors, from bringing patent infringement suits against the company for fear that the company will countersue based on their own patent.

However, more importantly, a patent can provide “economic” value to the company. For example, the patent can be used to generate revenue through: (1) licensing or selling the patent; (2) increasing market share by providing exclusivity and creating a barrier of entry for competitors; (3) generating interest from investors who provide funding; (4) obtaining damages via an infringement suit; (5) etc.

Here is where a company often looks to “cash in” on the option purchased on the investment and shifts its attention to more proactive activities in generating economic value from the patent. For example, a company may engage in proactive activities such as policing for infringers, shifting to particular markets where the patent provides a competitive advantage, actively engaging with potential investors, actively pursuing licensing and/or sales opportunities, etc. However, taking a more offensive posture to capture economic value from a patent can often involve the company investing additional time, effort, and money in engaging in these proactive activities.

For these reasons, a company should view the decision as to whether to pursue a patent on a particular technology as a strategic one, and not necessarily as a legal one. The goals guiding the company’s decision on whether to seek patent protection on a particular technology should dovetail with the goals for the company’s business strategy.

Our professionals at Brient IP understand this and are experts in guiding companies in making strategic decisions on pursuing patents for various technologies that align with the companies’ business strategies and goals. Our expertise does not only involve guiding companies in making strategic decisions on whether to pursue patent protection, but also involves guiding companies every step of the way through the patenting process to produce patents that align with the value these companies are expecting to create.

Our professionals have served in both outside counsel and in-house counsel roles and understand the complexities that go into decisions involving companies’ pursuit of patent protection for various technologies. Our professionals have extensive experience that spans over a number of different technologies such as manufactured products and materials, mechanical devices, computing systems, artificial intelligence, cloud computing, networking, wireless technologies, logistics, complex industrial machinery, aerospace, and avionics to name a few. In addition, our professionals have extensive experience with counseling companies on patent portfolio development, management, and evaluation, as well as providing monetizing strategies and assistance.