Invalidity Search Could Save Your Next Patent From Costly Surprises

Generally, patent conflicts do not first start out in a dramatic courtroom setting. They typically go with a missed detail that was first mentioned in a prior patent, technical paper, or published research. One of the reasons is that invalidity search is now a standard component of IP planning for businesses all over the USA. Companies creating new technology, medical devices, software, and manufacturing processes are finding themselves better off knowing how to assess the power of existing patents than creating new ones.

There are many organisations that place a great emphasis on completing applications and do not dedicate sufficient time to examining patents already in existence. Anyone with experience in IP knows that those two activities are all about the same. Evaluating existing technologies may affect license negotiations, product introduction, investment consideration and acquisition planning.

A Strong Patent Portfolio Starts With Better Questions

It's a fallacy to believe that any granted patent is an ironclad legal protection. This is a view that patent attorneys do not often encounter.

Each patent is one of many inventions published in journals, conference papers, technical disclosures, and prior patent applications. Year later references can emerge for the patented invention, often overlooked. In the event of legal challenge those references can have an impact on the interpretation of claims.

Here, invalidity search comes into play. It does not simply take a patent as it comes, but considers whether proof from earlier patents might cause the patent to be less valid.

This isn't a fault-finding exercise for the sake of the argument. It is simply about minimizing the uncertainty prior to crucial business decisions.

Small Discoveries Often Prevent Bigger Problems

A truism that rang true on many fronts was that small investments in early research often avoid costly disputes down the road.

Suppose a firm is ready to roll out a new medical technology. Production has started, marketing strategy is finalized and marketing partners are prepared to take the plunge. As a patent issue suddenly arises, all aspects of that investment can become more complex.

An earlier review may result in discovery of prior art which alters negotiation tactics or exposes weaknesses before substantial resources are invested. But this sort of work is seldom in the news and professional attorneys know its worth.

Looking Beyond Patent Databases

Many people think that patent reviews are all based on patent documents.

In fact, there are multiple information sources in a good investigation:

• Scientific publications

• Industry journals

• Technical conference papers

• Product documentation

• International patent databases

• Materials that are publicly published and stored.

The one thing that is very rare is that, sometimes, old technical literature is very valuable. Years later, documents that were not of major interest may suddenly become relevant in patent litigation proceedings, as a basis for knowledge of what was already public.

Innovation Moves Faster Than Legal Review

In the USA, technology is advancing at a very fast pace. There are breakthrough patent applications in fields like artificial intelligence, biotechnology, the design of semiconductors, and advanced manufacturing, and clean energy.New patent applications are being filed at an unprecedented rate in areas such as artificial intelligence, biotechnology, semiconductor design, advanced manufacturing, and clean energy. The process of legal review isn't always so swift.

The difference presents opportunities and challenges. Firms can unwittingly be found in overlapping patent areas, believing that they have invented something entirely new. Others are afraid to go further down a good idea, since it seems there are patents that are wider than they are. A careful analysis of patents helps to distinguish perception from reality.

Investors Pay Attention to IP Risk

Intellectual property is becoming a more important consideration for financial investors along with revenue estimates and technical performance.

A startup that has such a promising product but has no established patent analysis is riskier than one with a proper patent analysis. Before significant rounds of investment, VC firms and strategic investors will ask in-depth questions about the strength of the patent.

An organized invalidity search reveals that the company has considered the possible legal issues rather than taking a chance that all will be fine.

It does not mean success in the future, but that the important questions have already been asked and thought about.

Practical Value Beyond Litigation

While patent disputes are the focus, companies do not only conduct a thorough search when there is one.

A large number of organizations perform patent analysis in the following stages:

• Licensing negotiations

• Acquisition due diligence

• Partnership evaluations

• Competitive intelligence

• Product development planning

In each case, there is a bit of different research that has to be done, but the end result is always to make the right decision before it's too late.

The broader view is generally not heard in the world of intellectual property.

The Human Side of Technical Research

Occasionally, patent professionals refer to their tasks as investigative and not administrative. Well that's a pretty accurate description.

Prior art searching is not "just putting words into a database. It involves being able to read and interpret patent claims, to follow the patent citations, to find synonyms to the terms used in the patent claim, and to understand the technical terms.

Savvy analysts are aware of situations where significant evidence can be found where not many people look for it.

Citius Minds, for instance, brings patent research experience and technical expertise to the table to assist clients in better deciding complex IP issues.

Careful Preparation Creates Better Options

A key change in the landscape of innovation across the U.S. is the increased propensity to consider IP earlier in the development process. Businesses have found that, after the products go commercial, partnerships are finalized and manufacturing investments ramping up, flexibility is gone.

A well thought out search for the invalid will give you space to wiggle around, and it will cost relatively little if you make the decision before it is too late.

Not all searches reveal major issues and that is useful information as well. A stable backlog and confidence that has been built up through careful research means companies can start negotiating from a better position, tweak their filings or develop without having to worry about missing pieces.

Creativity is the key to innovation, and curiosity with respect to what has gone before is the key to successful intellectual property planning. It is often useful to analyse past knowledge to inform organisations in their future direction with more confidence, preparedness and an understanding of the competition.

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