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Archived updates for Thursday, July 27, 2006

IPO's Adler on Proactive Patent Lawyering

IPO President Marc Alder believes that we should all be "Searching Before Filing" and I tend to agree. According to Marc,

First, it is essential for assessing the patentability of an invention and
determining the exact scope of the expected claimed invention. . . . The second
self-interest reason for conducting a pre-filing patent search is to proactively
avoid infringement of others' patents. . . . It is smart to be
actively involved in analyzing your inventions.

In fact, I have been advocating such "Proactive Intellectual Property Lawyering" for quite some time.

For those of you that are concerned about the possibility of willful infringement liability in connection with anything that is located during a patent search, I would like to point out that I have never met a senior corporate leader that did not want to identify such problems early in the design/development process, when they are cheapest to rectify. Relying on the possibility of treble damages as a reason not identify your competitor's intellectual property rights always seemed to me like putting the cart before the horse. The total cost of intellectual property litigation often has very little to do with the size of any damages award. In fact, if your goal is to promote cost-effective measures to avoid all litigation, then maybe treble damages should be the penalty for NOT searching, or maybe it should be gotten rid of all together.

Sure, Adler is correct in noting that "It costs money to develop the capability and skill for inventors and patent owners to utilize sophisticated databases to conduct comprehensive pre-filing searches." However, one way to minimize those costs, and develop your organization's I/P culture, is with my "Free Intellectual Property Training Seminar" for new clients. Besides, if you like what you see the I/P Updates news service, your colleagues will love what I can show them in a half-day seminar.
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Anonymous Anonymous said...

Realistically, what percentage of the patents that are cited against you in litigation were published prior to your filing date? I know for me, it's near zero. The 18 month plus lag in pulication makes the searches an expensive but useless process for many technologies. My clients are not 18+ months behind the times.

I usually recommend searching for public disclosures instead of patents. Those tend to occur within days of filing, in many cases, instead of 18+ months.

July 28, 2006 3:59 PM  
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