(503d) Addressing Patent Protection in the Product Development Process

Third-party patent protection can be an obstacle to product development and introduction. Some development efforts completely ignore patent issues until a late-term crisis arises. Identified too late in the product development cycle, patent issues may add unacceptable costs (e.g., royalties) or even block product introductions altogether.

At the other extreme, some would-be product development efforts get bogged down in excessive concerns over third-party patent protection without exploring the substance of the protection. Patent holders often rely on a combination of related weapons to perpetuate artificial barriers to new product entry. These weapons include (1) ominous market perceptions of extensive patent protection, (2) the complexity of multi-patent portfolios, and (3) non-specific threats of patent litigation. Surrounding each of these factors is the relatively high cost of patent legal services. Furthermore, corporate patent departments are often reluctant to undertake resource-intensive, open-ended product clearance projects.

The presentation provides planning suggestions, training strategies and example scenarios for cost effectively assessing the true risk of patent infringement liability. Managers of product development efforts can avoid costly missteps by understanding the select set of factors that affect a given product's level of patent liability risk. Patent issues can be addressed cost-effectively at successive stages of product development. Patent issues can be made less costly and disruptive when patent protection evaluation is integrated into project plans. Project resources applied to patent assessments are better conserved by targeting efforts according to the stage of product development. Early efforts, for example, can be focused more on identifying problem patent holders rather than a review of all patent holders. Easy-to-use techniques are available for identifying patent holders and the associated threat level.

Finally, managers and developers can be persuaded with minimal training to actively and effectively contribute to patent assessment efforts. Developers should avoid the "it's all legaleeze" excuse that delegates all patent issues to patent attorneys. Although developers must at times be coached (or coaxed) to digest patents line-by-line, this presentation offers time-saving techniques for evaluating patents that will reduce the need for costly legal services. The paper also offers suggestions to non-lawyers regarding how to evaluate patents without unintentionally creating a damaging paper-trail.