7 reasons why companies should monitor the competition’s patents…

14 Aug 13

With the pace of business and speed of technology ever increasing, even a small difference that gives one company’s products or services an advantage can mean big differences in market share.

So it is important for businesses to keep up with their competitors’ activities, otherwise they risk being caught off-guard and left behind.

Most businesses are good at keeping track of the current activities of their competitors as they are often highly visible, but pre-empting their strategy is a much harder task.

A highly effective way is to keep a close eye on their intellectual property, which will allow you to uncover clues about what your competitors are planning, and take action accordingly.

Why monitor the competition’s patents?

1. You can determine how your competitors are investing their money, and what directions they are moving in.

For example, you can determine what new products they are developing, allowing you to determine whether to develop competing products or focus your efforts in a different area.

2. You can determine whether your competitors are planning to enter new markets and which markets they may be neglecting.

This knowledge can help guide your own protection strategy and identify opportunities for business growth.

3. Understanding the type of patents filed in your field can give you a better idea of what can be protected, and which of your own developments you shouldn’t be giving away.

Patents are not just for revolutionary ideas, but for new products or methods that offer an advantage, or improvements in existing technology.

4. Patents can be challenged and it is usually easier to successfully do so before or just after the patent has been accepted by a patent office.

By keeping watch over your competitor’s patent applications, you can challenge anything that might present an obstacle at the right time, and prevent them from obtaining protection they aren’t entitled to.

5. A patent provides its owner with a 20-year monopoly in New Zealand over the invention, so every patent granted to a competitor may critically affect your ability to use your own technology for some time.

By monitoring the patent rights of others in your field, you can ensure you don’t inadvertently invest in technology that you will not have the legal right to use or sell.

6. Many patent rights are licensed, and by keeping an eye on patent filings you may identify patents for inventions that would be profitable for you to use or sell under license.

You can benefit from identifying this early, for example by seeking an exclusive license for the technology before other competitors, or by simply completing the license agreement early and getting the product or service on the market first.

7. It is also worth monitoring patents filed by competitors overseas. Firstly, this will provide you with information about the technology that may eventually be protected in New Zealand.

Secondly, by monitoring an overseas company’s published patents and applications, you can find out about new technology they have neglected to protect in New Zealand and which is therefore available for you to use or sell.

How can you monitor your competition’s patents?

The most effective way to monitor the patent portfolios of your competitors is to ask your intellectual property advisor to set up a ‘watch’ on their activities.

They will periodically check patent office databases and provide you with regular reports with details of any new patent filings or any developments in existing applications in the name of your competitors.

A watch requires little time or effort on your part, yet you will be kept up to date with any information on your competitor’s patent activity as it becomes available.

Your advisor can also perform a one-off search at any time to provide you with a detailed report of the available information about your competition’s patent rights.

Bear in mind however that while occasional one off searches can be helpful, they do not provide you with an ongoing understanding of your competitors’ business strategies or the certainty of being able to challenge an accepted patent during the time available.

By Jonathan Lucas, senior associate, and Joseph Garvin, technical advisor - James & Wells

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