19 October 2020
How the choise of a business model can influence the Patent Drafting
For years I have acted as a sounding board for companies that are taking their first steps in the world of patents and in that capacity I have been able to read and analyze many patents.
It strikes me how the basic choice of WHY a patent is chosen very often determines how the claims of this patent will be drafted.
An example:
As an innovation, in line with today's challenges, let us take the example of an oxygen distribution device that must control the ventilation of several patients at the same time in a uniform manner. Typical of such innovations, this innovation consists of a housing with user-centered operation and an interior that contains the technology to distribute the oxygen.
we look at 3 options to consider a patent:
- Afraid of being copied, it is quickly decided to protect the invention through a patent. [_ Mark] The claims of the patent will be drafted in such a way that all possible cases of infringement can be proven, so that the patent will be can be used as conclusive evidence. So one starts from the vision "what will be copied and how could we detect violations", and claims are built from there. Such patents will describe concrete application, housing and interior in a rather visual way so that demonstrating infringement afterwards can be supported.
For tax reasons, it is decided to prove the invention with a patent in order to be able to implement tax optimisations afterwards. [_ Mark] Tax rulings state that any added value resulting from the patent results in a tax discount. So it comes down to drafting the patent in such a way that a large part of the invention has added value through this specific patent, precisely to promote taxation. In such cases, the housing, the overall application, the inside work will again be combined in the claims to demonstrate that all have a substantial contribution to the innovation and that maximum added value can therefore be demonstrated.
Scalability is important and so we are looking at whether growth and expansion of markets (licenses) can be attracted through a patent. can also find other applications. What it boils down to is to draft the patent in such a way that it essentially describes the solution to a problem and makes minimal demands on the concrete application. In addition, the claims are drafted in such a way that licenses in other markets are possible.
For the ventilator example, the focus is on the technology to distribute the air evenly and not on the housing of the device or its controls. It is also examined whether air is the only medium that must be distributed and if possible, it is even opted to use air or another medium as a description so that the technology could also be used for liquids.
Note: for the sake of clarity, the 3 options have been enlarged somewhat so that the differences between them become sufficiently clear
Each option has its pros and cons. From my analysis - I have already been able to read a lot of patents - I notice that the majority of patents are written from either copyability or fiscal optimization. The scalability option appears to be the most difficult. Neither the inventor nor the patent specialist sometimes succeeds in isolating this approach from innovation and consequently considering this line of thinking.
The problem with patents, however, lies in the fact that once your patent has been written and filed, you can never change options or perspectives. After all, you have released too many elements of novelty in your first patent application, so that a second version can never again meet the criterion of novelty.
As an innovator and specialist in scalable thinking, I naturally prefer option 3 to write scalable and economically profitable patents. And where relevant, in combination with a design protection to protect the look of the housing.
That is why I developed a Lean Patent Canvas to make companies, start-ups, and inventors think about the scalable value of their idea. With this canvas you learn to abstract the problem and the solution from your concrete first application and from there you can continue to work on the growth of your invention.