By design, the patent system generates a wealth of technical know-how with respect to new technologies. It chronicles the technical challenges others have faced in the past and how they solved those problems. This information is commonly referred to as the patent landscape and includes issued patents, pending and abandoned patent applications, and the prosecution history of such documents.

If assembled and interpreted properly, the patent landscape will inform a variety of decisions made by engineering teams and managers. Probing the patent landscape, however, can be a tall order depending on the technology of interest. There might be thousands of patent documents to consider, and these documents may use obscure patent legalese and inconsistent terminology to refer to similar concepts. Those who are able to decode the patent landscape, however, can leverage their insights to secure a competitive advantage.

If assembled and interpreted properly, the patent landscape will inform a variety of decisions made by engineering teams and managers. (Credit: Marshall, Gerstein & Borun LLP)

Patent Landscape Investigation as Part of the R&D Process

A core principle of the patent system is that, in exchange for time-limited rights to an invention, an inventor must explain to the public — in fairly specific detail — how to make and use the invention. Thus, the inventor is not the only one to benefit from the patent system. The public is also a beneficiary in that its collective knowledge is increased by the inventor’s disclosure. The resulting spread of knowledge can fuel additional innovation.

A consequence of this quid pro quo aspect of the patent system is that public record includes detailed technical information on many commercially important technologies. In certain cases, this information would be kept secret by companies but for their use of the patent system. Finding ways to take advantage of this large and growing body of technical information is something that decision makers are factoring into research and development strategies.

Before investing in a new technology or adopting a technology with which they have limited experience, some companies will investigate the patent landscape involving that technology. This can be a prudent initial step, especially if the technology has a long history of commercial use or development.

Drug-Delivery Device Innovations

Drug-delivery devices — despite having many old and well-known platforms such as the syringe — are an example of a technology that has been the subject of much recent innovation. Factors driving this innovation include an increase in the number of injectable drugs coming to market and the convenience of being able to self-administer drugs at home. Conventional drug-delivery devices can be challenging for certain patients to operate and therefore may not be suitable for home-use in many cases.

Recognizing this issue, innovators have sought to improve the design of conventional drug-delivery devices and simplify their use for patients. One common approach is to customize an existing design for a particular patient or patient population, or even for a particular drug. This customization can lead to higher patient compliance rates and provides avenues for drug manufacturers to use these devices to differentiate themselves from their competition.

A robust patent landscape exists around many drug-delivery devices. It is usually the case that a drug-delivery device, like many other types of medical devices, can be disassembled and reverse engineered by a competitor with minimal effort. Consequently, obtaining exclusivity for new products and form factors via the patent system is a priority for many device manufacturers.

How to Watch Patents to Predict Product Launches or Trends

A crowded patent landscape presents both risks and opportunities for product developers. On the one hand, a crowded landscape can make it challenging to navigate around the patent rights of others when launching a new product. On the other hand, a robust patent landscape can provide insights about the state of innovation in a technology sector that other forms of market research often cannot.

A patent application describing a new product may publish months — or even years — before that product comes to market. This is a consequence of the fact that the patent office rewards those who file early and, in most cases, will publish a new patent application within 18 months of its filing date. Studying recently published patent applications, therefore, is a way to monitor what competitors might have in their product pipelines and also identify new entrants in a technology space. A spike in a number of subject matter related patent filings by a company can be an early indicator that the company has a new product in the works.

Patent landscape research, however, is not limited to keeping tabs on competitors. It is also a useful way to build technical expertise and spark ideas for improving existing products. Understanding what problems motivated others to develop novel solutions in the past can inspire new or alternative solutions.

Investigating the patent landscape can also reveal emerging technology trends and fading ones. If many entities are devoting resources to pursuing patent protection on a specific technology, this can be a sign that the technology has commercial promise. Investigating the patent landscape can also provide a general sense for the scope of protection that one may be able to obtain via the patent system.

Commissioning Patent Landscape Studies

These considerations, among others, are what may be driving medical device companies, as one example, to commission patent landscape studies. These studies take a variety of different forms but in general seek to find useful ways to leverage the vast amount of freely available patent information on a particular technology. These studies can help answer questions such as:

  • How have others addressed this technical problem in the past?

  • Are there any emerging technologies that we have not previously considered?

  • Is there any chance of obtaining patent exclusivity for our new developments in this area?

  • Are there opportunities to borrow technologies from the public domain?

  • Who are the most active patent filers in this technology space?

  • And what activities do their recent patent filings indicate that they are engaged in?

  • Would another company make a good technology partner for us based on the subject matter of its patent filings?

As the patent landscape continues to grow, so does the justification for conducting these types of studies. Those who can unlock the secrets of the patent landscape are likely to reap its rewards.

Disclaimer: The information contained in this article is for informational purposes only and is not legal advice or a substitute for obtaining legal advice from an attorney. Views expressed are those of the author and are not to be attributed to Marshall, Gerstein & Borun LLP or any of its former, present, or future clients.

This article was written by Daniel T. Chavka, Partner and Registered Patent Attorney with Marshall, Gerstein & Borun LLP, Chicago, IL. For more information, click here .