March 22, 2022
By Robert Cantrell - Registered Patent Agent
If you have ever worked with technology involving chemical reactions, you are familiar with entropy. Entropy is a decline from order to disorder where order is defined as a state that takes greater energy to maintain than disorder. The operative word is energy, and the concept carries over into other systems and other professional disciplines.
As an example of carryover—this example stemming from nineteen years ago when I was working with members of the National Defense University—I noted that no country has ever liberated another country from itself. This phrase meant that people experiencing unsolicited change will fall back to their default settings, such as a certain type of social order or government, unless extraordinary energy is imparted on their way of life and maintained. But like the grass that gains its first foothold in the cracks of a parking lot, without maintenance, there is an overwhelming and exceedingly patient force inherent in the grass that wants to turn that parking lot back into a field.
The concept of defaulting to lower energy states is universal. Therefore, you should expect changing a patent program from a lower energy state to a higher energy state to improve performance will require some effort to execute and maintain. Applying higher energy usually involves one or more of raising inventor productivity, extending the patent portfolio to increase the value of the enterprise through licensing, and exercising the right to enforce exclusivity to shape a market space. You champion the change and may gain great success. But what happens if you leave before the default sets to the new way?
Creating permanent change for a patent program requires creating new default settings where the positive changes imparted on the program become easier to maintain than falling back to the earlier settings. A place to start is with patent program guidelines. Guidelines and changes to guidelines allow organizations to adopt new strategies while also changing the default settings. For example, one way to prime a patent portfolio for licensing is to introduce elements of that patent portfolio as currency for venture professionals tasked with building third-party relationships. Such venture professionals pride themselves on making deals via means other than cash, and when the option to use patents as currency becomes a part of their standard practice, it serves to maintain the licensing program as the preferred default.
By Jose W. Jimenez, Esq – Former Chief Patent Counsel & Registered Patent Attorney
A number of good corporate innovation and product development programs have already implemented patent program guidelines to institutionalize best practices. But like a good sales and marketing plan, the guidelines need to be reviewed every so often, especially the wins and misses, revised and then executed again.
One way to ensure that a patent program stays vibrant and evolves with the company is to set revenue goals, market share targets, or both by tasking your IP professionals and IP department to actively use your patent portfolio to achieve these ends. Revenue goals can be achieved through out-licensing or by selected patent litigation to capitalize on commercialization by competitors of your technology. Market share gains can also be obtained by engaging certain competitors with licenses or driving other competitors out of the market.
Another way to ensure that the new default setting is higher is to give high visibility to the entire Intellectual Property/Patent program and its participants and by making IP acquisition and growth part of the overall corporate strategic plan, just like sales and operations, instead of just having it as an afterthought. Care and feeding of your IP program is just as important as your sales and operation teams.
Remember, like in any good plan you need to: 1) review your wins and misses and review plan assumptions; 2) refine or revise your goals going forward; 3) execute; and 4) repeat.
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