How will patent strategies change in an insecure economic environment?

The northern hemisphere is currently facing political and economic turmoil, the extent of which is difficult to assess, even for experienced experts.

One could now ask the question: how should patent strategies adapt?

As indicated in a previous article, the term ‘patent strategy’ generally encompasses decisions that can be grouped under the following two broad categories:

• Filtering the ideas referring to technical aspects that are inherently patentable and then grouping them into patent applications; and

• Selecting the patent trajectory for each invention: where (jurisdictions) and when (which patent application is filed first).

Economic turmoil has a wide array of effects. For patent strategies, this article will discuss two of them, which seem to be the most frequently encountered.

First of all, economic uncertainty refers to market uncertainty: is my product corresponding to the patent application(s) of interest for the market? How can I assess the interest if basic elements of the markets are changing in an unpredictable manner? This will be called the first effect.

Then, economic uncertainty refers to the funds needed for the patenting process: given the general expected rise in prices, will I be able to pay for obtaining and enforcing the patent(s)? This will be called the second effect.

The first effect will force the applicants to find (new) technical areas of interest, such as drones and telecommunications for connecting flying objects. The downside is that, in some cases, the underlying technology may be considered classified information by patent offices. In this case, most probably there will be no patent granted and the applicant would have to deal with government entities for the use of the technology, which, from a strictly economic point of view, has good aspects (money guaranteed) and bad aspects (secrecy comes with new obligations).

The second aspect will push the applicants to reduce the number of patentable ideas and to shorten the specifications, in an attempt to reduce costs.

A foreseeable positive side-effect may be that only the best ideas will go through the patenting channel.

The first effect will force the applicants to be creative in selecting the jurisdictions where their products are likely to be of interest: either because the products are used there or (in the case of physical products) manufactured there, or both. Then, selecting the order of jurisdictions will be equally important (e.g., first file an EPO application, then a Patent Cooperation Treaty (PCT) application, or the other way round – first file a PCT application and then nationalise at the EPO).

The second effect will impact the selection of the attorneys in an attempt to make the entire patenting process more cost-efficient.

Patent strategies will have to adapt to allow inventors to make best use of their ideas in these times of economic and political uncertainty.