Commentary by James Todhunter

Patents – Innovation Killer or Innovation Accelerator

It seems every time I scan the recent blog postings on innovation, I see at least one or two posts declaring patents are stifling innovation. This certainly wasn’t the intent of the patent system. To the contrary, the idea was that by providing the temporary monopoly granted by a patent, the cause of innovation would be advanced by publishing the latest state of the art so that other innovator could learn.

In a brightly lit room somewhere, the question is asked, “So, how does this patent busting method work?”

“It is really quite simple,” comes the reply. “The Doctrine of Equivalents and its application in case law give us very good guidance as to how you can break through a competitive IP barrier. In short, if you follow a simple 3 step process you will rarely fail to find a new non-infringing way to accomplish the goal.

“One, Identify each of the independent claims of the patent in question.

“Two, Model each claim so that its design intent is unambiguously represented.

“Three, Refactor each modeled claim consistent with the principles of the Doctrine of Equivalents.

“Your newly refactored set of models now represent potentially distinct, non-infringing IP. Of course, there are a few subtleties to this method, and you should always run your new invention by your patent group to be doubly sure, but that is essentially the way it works.”

Although this conversation might sound like a work of fiction, it isn’t. I can’t even count the number of time I have had this conversation over the years, nor can I count the number of time I have discussed the results people have had applying this and other similar methods.

Yes, it seems clear to me that patents are a springboard for innovation. If you have the right tools and understand the associated best practices, patents represent a rich source of ideas to spur innovation.

[Crossposted from www.InnovatingToWin.com]

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