Patent Only Strategies…Do They Still Work?

What Researchers – Inventors Are Obliged To Know About Patent Only Strategies…

Most readers of this blog know the U.S. Patent and Trademark Office (USPTO) is receiving as much as 6+ times…more patent applications annually than it did in 1980.

Some may translate this increase as not being…particularly remarkable, standing alone, when considered in light of the facts that increases in patent applications are not necessarily congruent with the U.S. becoming more creative, innovative, or putting either to practical application.

In part, the increased number of patent applications filed-received at the USPTO…can be attributed to (a.) the fact that foreign patent applications received by the USPTO have risen significantly, as have (b.) repeat applications, along with (c.) the U.S. economy’ is substantially larger, more diverse, and technology – biotech driven today, compared to 1980

Its useful to know…of the patent applications filed and received at the USPTO, 40+/-% may be rejected for various reasons, but then modified and re-submitted to the USPTO.

Patent application content…as readers of this blog know well, must articulate ‘something’ that is new, novel, and/or non-obvious. This means a patent applicant has presumably developed ‘something’ which has unique components-ingredients which are not common knowledge, i.e., in the public domain.

As an example of this…let’s examine ‘utility patents’. Utility patents respectfully represent what some refer to as ‘garden variety’, with the hope and expectation that the individual(s) who prepare – submit (sign off on) a patent application, genuinely believes they have developed ‘something’ that meets the aforementioned requisites of being novel and non-obvious.

  • This could include a machine, a process, a method, or perhaps ‘any thing’ which is manufacturable for a specific use, i.e., a new type of mousetrap, a better means to churn butter, or a new mobile app, etc.

An enticing claim by the USPTO, regarding utility and other types-categories of patents, is that…if the application passes muster and is issued, it is protectable for a period of 20 years, ala a presumptive prohibition to others from manufacturing, selling, or distributing a previously patented invention for a terms of years.

For the understandably ecstatic researcher-inventor…i.e., recipient of an issued patent, the presumption of patent enforcement and protectability is, based on my years of experience, routinely misunderstood – misinterpreted. Routinely, the assumption is, there is some impenetrable bubble of deterrence encompassing the new, novel, and/or non-obvious patent. And, that bubble is specifically intended to safeguard the patents’ utility and functionality features for 20 years!

My counsel to patent holders…is to encourage them to interpret the word ‘protection’ not quite so literally, rather, in the context of ‘wishful (cross-your-fingers) type of deterrence’.

In government (USPTO) speak…patent protection, translates far more more practically, i.e., it provides a patent holder with judicial standing to sue those suspected of engaging in infringement and/or misappropriation of what they have successfully patented.

Frankly, this places some onus on each patent holder, as a (fiduciary) responsibility to have effective best practice safeguards…in place (prior to, during the application process, and upon, and following the issuance of a patent for the duration of its patent protections.

The primary objectives for these safeguards are to mitigate…the vulnerability, probability, and criticality of the patent experiencing economic, competitive advantage, and/or market losses from occurring.

More specifically, to achieve this…each patent holder is obliged to assume a (fiduciary) responsibility to be alert to, monitor, and rapidly and effectively respond to any-all indications (evidence) their patent, whole, or in part, is being infringed, misappropriated, or otherwise stolen.

Equally important, any explanation – discussion of patents…i.e., their content, and hoped for economic, competitive advantage, and/or humanitarian – altruistic outcomes, would be remiss, if the holder overlooked – neglected to recognize the contributory role of intangible assets, i.e., intellectual, structural, and relationship capital which variously underlie each stage of patent development, formulation, and execution.

Knowing this, is especially relevant to…understanding and distinguishing why, when, how and from what and from whom the intellectual, structural, and relationship capital embedded in – pertinent to the patent, must be independently safeguarded.

There is really very little difference between the content of issued patents and proprietary intangible assets…in fact, patents are merely one type-category of intellectual property (IP).

Furthermore, each category of IP is a subset of the broader category known as intangible assets…i.e., variations and collaborations of intellectual, structural, and relationship capital.

The distinction between a favorably reviewed patent application…i.e., a patent issued by the USPTO, is that a patent then assumes a tangible sense of physicality, insofar as the certificate issued by the USPTO acknowledging its registration. That can be framed and prominently hung on an office wall as a testament to the patent holder’s, usually collaborative, intellectual, structural, and relationship capital ala intangible assets.

Frequently, much to the vexation of intangible asset strategists and risk specialists, as I…intellectual properties, patents particularly, are touted as the presumptive ‘brass ring’ which (university and private sector) researchers and inventors are variously obliged to aspire. Being issued a patent does automatically convey expertise in safeguarding the proprietary knowledge.

However, both may be short-lived if – when asset safeguards and patent monitoring are neither in place or being effectively practiced.

My years of experiences in R&D arena suggest that…rationales for patent only research tracts may be advocated and/or perceived best when there is no intangible asset strategist (risk specialist) in the room to help articulate and explore viable – practical options which carry substantially less risk.

Important note: Deference is routinely given to patent (only) strategies…which are rooted in the time-honored perspectives that (a.) an issued patent is ‘protected by a U.S. Constitution deterrent effect’ and (b.)conveys a sense of ownership and legal standing on behalf of one’s intellectual and structural capital…

  • assuming the former has lost much of its prudence, because, in most instances it is no longer a matter of if, rather when, infringement and/or misappropriation will materialize – be undertaken by global competitive advantage adversaries, of which there certainly is no shortage.

Michael D. Moberly, February 6, 2017, modified from a February 6, 2017 post  St. Louis [email protected] the ‘Business Intangible Asset Blog’ since May 2006, 650+ published posts, where one’s attention span, businesses intangible assets, and solutions converge’!

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