Patent licensing: The patent battleplan
In a patent assertion campaign, the onus is on the patent holder to find products that are infringing. A successful licensing programme ultimately hinges on the ability to find litigation-quality evidence of use (EoU) against economically important features of infringing products. Evidence must show a solid, provable chain of custody and be based on a rigorous, systematic approach.
There are finite options available in the public domain for finding reliable technical evidence; in most cases, a successful licensing programme will need to be supported by reverse engineering (RE) to confirm assertions of infringement.
This article focuses on the proactive, pre-emptive steps you can take to significantly improve the probability of a successful outcome in an assertion campaign—either a licensing agreement or compensation settlement that rewards you appropriately for the value and quality of your patents.
Collectively these steps or tactics define key success factors for planning high-return licensing programmes.
Investigate the validity of your patents
A patent being granted means that it has met the quality standards of the examiner, but—especially in the case of technology patents—a more in-depth investigation is required to ensure the patent’s validity. The start point is the claim itself.
To prove a claim is practised or anticipated you must show that all elements are mapped in product evidence or literature.
Most of the elements in a claim chart are usually relatively easy to find in literature that is available in the public domain. This includes data sheets, service manuals, articles, conference proceedings, and marketing presentations. This type of reference material generally reveals indication of use (IoU), which could document everything except the key elements. While the key elements might be inferred, an experienced defence lawyer will use this lack of EoU to weaken your assertion.
