Patents, products and inventor misconceptions - Part 2: Your patent is not your product, and why you

One thing that seems to often crop up in business discussions (possibly more often than it should) are military analogies. There's plenty of books, training courses and related material out there that promise to provide your business with a competitive edge, based on their insights into ancient tomes of military strategy such as 'The Art of War'. As I have an interest in military history, I've decided to join the fun.

I recently attended a tech conference where patents were described as 'the nuclear option'. This turned out not to mean quite what everyone initially thought it meant (they meant they are seen as a high-value asset and a potentially exceptionally powerful weapon, rather than a potent source of mutual mass annihilation), but it did mesh quite well with a couple of other points that were discussed. One of the speakers contrasted the numbers and value of patents filed in different industries: pharma companies tend to file small numbers of patents, each of which cover potentially incredibly valuable compounds (such as for example the patents owned by Pfizer for sildenafil, better known by it's brand name Viagra), while at the other end of the scale, electronics companies tend to file huge numbers of applications, of which very few are particularly valuable in isolation, but which together form a formidable portfolio. While a patent or a patent portfolio isn't the equivalent of The Bomb, a patent fight between two roughly equivalent tech companies can tend to look a lot like the cold war doctrine of Mutually Assured Destruction - if a firm owns a large portfolio, then there's a pretty good chance that something which the other side is selling infringes something, and vice-versa. The main benefit to a company of a patent portfolio is that it does provide a deterrent - no-one wants to start a patent war because working out via a court room battle exactly what is infringed or valid and where is the nuclear option - no-one really wins except the lawyers (at this point, feel free to insert your own cockroach joke...).

So, patents are valuable, every company should have lots of them, and blah blah blah. Which brings me back to the title of this post: 'your patent is not your product, and why you need to understand air superiority'.

As gratifying as it was to hear how valuable patents are, and how every firm should have lots of them, and why you should drop what you're doing and get filing RIGHT NOW, goshdarnit!, it's rare for the value and functionality of a patent portfolio to be explicitly described - they're just something that you're told you should have, because everyone has them. Which is where the air superiority analogy comes in.

You may be familiar with the phrase 'boots on the ground'. 'Boots on the ground' is a shorthand way of saying soldiers - ground forces - actually in, and in control of, a portion of territory. In a conventional war, capturing and holding (and therefore controlling) territory is how you win. The only way to achieve that is via 'boots on the ground' - infantry forces in position on and around towns, road junctions, hills, and other important locations. If your troops are in those places, your opponent can't be, and therefore can't use them. Despite what politicians seems to think ('let's drop a few bombs. That should be enough to do the job'), having troops physically present in and controlling territory is more-or-less the only way to achieve any sort of positive end result. A (hopefully) non-controversial example: in order to achieve the liberation of countries in continental Europe in World War 2, it was necessary to actually put troops in those countries - the D-Day landings and subsequent ground fighting through to the surrender of Germany. Before the D-Day landings, the allies went to great lengths to achieve near-total control of the air over northern France. This stopped German aircraft being able to bomb or otherwise interfere with the landings, and allowed Allied aircraft to carry out their own disruption of German land forces opposing the landings unhindered. This was all part of a larger strategic air campaign that had been going on for several years. The people in charge on both sides already realised (well, mostly...) that bombing by itself wouldn't win the war. The German bombing campaign earlier in the war didn't defeat Britain, and the Allied campaign wasn't (by itself) going to defeat Germany. The allied air campaign was, in essence, a support tool that made the job or capturing and holding territory easier for the troops who needed to do that job.

So what does this have to do with patents? Well, patents are not products. Companies make money by selling products - what they sell, and how they generate revenue, is by making and selling a product that people want to buy.

This seems obvious, but in my experience, it's very easy for a client to start either conflating their products and their patents, or to misunderstand the point of their patents. They assume that having a patent means a licence to receive revenue. But the purpose of a patent is to stop anyone else from doing what you're doing - it's a negative right, not a positive right to make money. A patent supports your sales and development strategy (by blocking other parties out of a space in the market), but can't drive that strategy. It is a support tool. It is air support. It doesn't win battles by itself, but it makes it easier for your product to fight it's battles.