Michael Van Loy is a Member in the Intellectual Property Section of the law firm of Mintz Levin. His practice focuses on all aspects of Intellectual Property. Mike drafts and prosecutes patents and advises clients on IP issues in a wide range of technical fields in the technology and life science areas. He also represents investors in early stage companies with assessing the strength and value of these companies’ IP portfolios.
Mike was named a San Diego Super Lawyers Rising Star for Intellectual Property in 2016.
The Folly of the One Patent Strategy
“That’s one reason that large companies tend to accumulate a lot of what I would characterize as sometimes fairly incremental patents. They have patent incentive programs. They encourage their engineers to come up with ideas and patent them. Sometimes you look at a whole suite of them and say, ‘These are the same thing.’ What it means is that if they get sued by another competitor for patent infringement, then the competitor might come at them with 6, 8 or 10 patents. You rarely want to go into litigation with one patent. That’s like going into war with one bullet. With one patent, your opponent may say, ‘Okay, one patent, we can fight that. We can go to the patent office.’ There’s procedures to be able to argue that the patent shouldn’t have been issued and is invalid. With one patent, they may do that. Then you’re stuck. Each one of these procedures at the patent office is not cheap. If you have 10 of them, then they have to try to invalidate 10 patents. If I have 10 patents, and they come at me with 10 patents, then I can say, ‘Guess what? I have 15 that read on what you’re doing.’ You’re quickly going to get to a situation where they say, ‘Okay, why don’t we all just cross license and stop paying the attorney so much?'”
I think this is a common mistake made by some startup founders that they think a single patent on the “silver bullet” technology will be sufficient. It is not a good strategy. I hope you enjoyed Mike’s insights on this topic!
This is Patrick Henry, CEO of QuestFusion, with The Real Deal…What Matters.