Innovation often happens out of sight. Whether in the labs of a multinational corporation or in an inventor’s garage, it can be an insular process, the focus usually on the invention itself. It’s a tiring, trying, rewarding and all-consuming endeavor to coax a new idea into reality. The prospect of possible litigation over the invention down the line is not usually front and center. But perhaps it should be at least in the peripheral field of view.
That’s not to say that innovators should be thinking about the courtroom from day one, but having an eye toward eventual patenting, licensing, and even potential litigation can help build better patents and a smarter portfolio. Too many organizations see three distinct IP functions after invention: prosecution, licensing, and litigation. That’s precisely the wrong approach, according to litigator Gary Sorden, an IP Member and lead IP counsel at Cole Schotz in Dallas, because it precludes the collaboration that facilitates better long-term results.
“That three-headed silo approach has a high degree of failure,” he says. “If you’re coordinated and have honest communication about any weaknesses, those weaknesses can be addressed through prosecution, different licensing techniques, or even different litigation techniques.”
Innovators should be thinking about the full lifecycle of the invention before filing, he says, including the possibility of eventual conflict.
A Bigger Picture
“You have to ask yourself as you move through that pre-patenting phase, ‘What do I need to preclude others to be able to do if I want to live in that space?’”
Member
Cole Schotz PC

Speed Kills Patents
Mistakes made before filing can hamper both assertion and defense, or block the full realization of a patent’s potential.