Why Is It Important To Check The Strength Of Your Patent?

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They said – “we are acquiring a company,” “purchasing their patents” and “we are suing someone” 
We simply retorted – “get the strength check of the patent portfolio before proceeding ahead” 
The rampage of patent filings and litigations between companies has brought patent strength evaluation the most crucial thing in today’s challenging world.  

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A Brief of Patents and their Strength Checking   

Well! with the heat of many developing ideas, inventions, and discoveries; inventors have come a long way in self-creation. The most favorable ideology of one’s identity is “Patent.” When one creates something unique that is beneficial not only for them but all, they tend to make the copyright of their inventions/creations. A patent gives one the right to stop others from copying, manufacturing, selling, or importing the invention without one’s permission. Therefore, patents are considered to be the most important asset of an enterprise. 
Worldwide, several patents are granted every year through various patent offices. As per the Intellectual Property Owners Association (IPO), the total volume of patents that were granted by the USPTO in the year 2021 was 327,798. Does this mean these patents can survive if performed strength checking? The answer is No, a big No! In other words, not all patents survive the challenges if reviewed, re-examined, or confronted in court for invalidation after being granted. The PTAB’s invalidation rate suggests that 84% of the patents stood invalid when challenged in FY20. The patents which cannot survive the strength checking are considered weak, and such patents can cause serious consequences to the assignee/inventor/enterprise if attempted for monetization. 

Importance of Patent Strength Checking 

A non-hidden fact that we all know is obtaining a patent license costs huge money. Therefore, it is crucial to evaluate the strength of a patent before acquiring any enterprise or buying its patent portfolio. Buying the patent license without analyzing its strength may cause serious damage to the licensee. Let us understand it with an example: 

Consider, that firm A purchases a patent without analyzing its strength. After purchasing, firm A sees that another firm B launches a product in the market that overlaps with the technology in the licensed patent. Firm A asks firm B to stop manufacturing/selling the infringing product, as they come under claims of the patent owned by firm A.
Firm B disobeys the request of firm A, and firm A decides to file an infringement lawsuit against firm B and bring the matter to court. Now firm B has two roads ahead i.e., (1) pay the royalty and take the license (2) try a way to invalidate the patent through the invalidity search. As a result of the invalidation search, firm B manages to figure out a strong prior art that could invalidate the patent owned by plaintiff firm A.
Now, this is the end of the patent and thus the litigation. This unplanned action of firm A to sue firm B cost it a lot. The money spent on purchasing the patent license, and suing firm B, all got wasted. Further, firm A fails to stop firm B to manufacture its alleged product, and above all, this may give birth to a new rivalry between firm A and firm B. In this way, buying a patent without conducting its strength analysis may ruin the money, reputation, and future of a firm.
Considering this, one must always think one step ahead while making any decisions. Particularly, it is important to get a strength check done for a patent in the following scenarios-  

  • Before buying the patent from the inventor/assignee 
  • Before acquiring any firm 
  • Before filing an infringement lawsuit against a firm  

Parameters for Checking Patent Strength  

Some important parameters for checking patent strength include:

  1. Number of Claims – It is suggested that a patent with a greater number of claims has more chances of surviving a litigation 
  2. Exhaustive patent prosecution – The patents which undergo exhaustive prosecution or face a greater extent of rejections during an examination are generally strong and therefore, they exhibit higher strength 
  3. Forward citations – A patent with a higher number of forward citations is considered as a strong patent. 
  4. Patent family – Since a patent family displays worldwide protection of a patent, it is also an important parameter indicating the strength of a patent.  
  5. Claims broadness – Broadness of claims decides the technical scope of the patent and acts as an indicator of patent strength. 
  6. Remaining life – The remaining life of the patent is also an important factor that decides the strength of a patent 
  7. Validity of a patent – This is done to check the validity of a patent which further indicates the strength of a patent. 
  8. Number of Products Infringing – Checking the products for infringement against a patent to see how strong it is from the market perspective.

Tools for Evaluating Patent Strength 

The increasing number of patent filling and advancement of AI had put substantial pressure on programmers and engineers to develop advanced AI-equipped tools for evaluating patent strength. And thus, we at TT Consultants excel in it with our AI-enabled tool, XLSCOUT. Although, there are numerous tools available in the market for conducting patent strength analysis, however, an efficient evaluation still needs human intervention. This is because an experienced IP professional knows how to efficiently handle IP-related tools and use suitable parameters to conduct a systematic search. 

Conclusion

From the above information, it is apparent that checking the strength of a patent is crucial before buying or filing a lawsuit in court. A weak patent may cause a heavy financial loss and other consequences to the licensee of the patent. Further, an efficient patent strength analysis can be performed using advanced IP tools supervised by experienced IP professionals. 

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