Patents and the Product Manager
“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”
— Article 1, Section 8 of the United States Constitution
Product managers are the driving force behind innovation and problem-solving in any well-run technology company; yet many product managers do not immediately think of themselves as inventors. When I speak with product managers about patents, their initial response is usually, “Isn’t that something for my engineers or legal department to worry about?”
While engineers are an important source of innovation and legal departments must be involved in the patent process, product managers are uniquely situated both to create new patentable inventions and guide the company to inventions worth patenting. In most companies, product managers are closest to the customer problem areas that need innovation; and, therefore, most able to innovate new and relevant solutions.
Product managers also possess the best understanding of their market and are capable of making the best judgments concerning which ideas to patent and on which areas to focus for innovation.
Why should a product manager care about patents?
Isn’t it enough to know your market, understand customer needs, write good requirements, and have Engineering build it? In many cases, the answer is “No.” You might put in effort to gather requirements, dispatch teams of product managers to learn from customers worldwide, spend weeks with Engineering sorting out the details of what to build, and wait months while Engineering builds it—only for a competitor to copy what you did six months after you launched.
Unless you filed a patent for your invention, your competitors can look at what you did in your product and implement the same feature in their products—without having to put in the effort to figure out that your feature was the right thing to build. Even worse, they might look at what you did, make it better, and still have put in only a fraction of the effort you did.
Product managers constantly strive to create the best and most innovative ideas, only to see those ideas promptly copied on release by their competitors. Most product managers view this as a normal and mostly unavoidable part of life in the technology industry. With a patent, however, product managers can directly protect their work. Patents enable you to control your idea: You can decide if you want to allow competitors to license your feature (patent) or if you want to make it unique to your product.
Patents can give your product exclusive features that can’t be duplicated by any competitor. They can also give you pricing power for your product (if the market really wants those exclusive features). And patents can simultaneously protect and increase the value of your company.
“Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefore, subject to the conditions and requirements of this title.”
— United States Code, Title 35, Part II,Chapter 10, Section 101
What should you patent? That depends on your patent strategy. Some companies have a broad patent strategy, where they will patent anything that looks interesting, even if it is unrelated to a business in which they are currently participating. This approach is called an offensive patent strategy, where they have built up a large patent portfolio and have created a significant licensing revenue stream from it or greatly enhanced their bargaining position.
Other companies have a very defensive patent strategy, where they are only looking to obtain patents that are narrowly drawn to their business model or products. This approach means that they can more easily defend themselves from patent infringement lawsuits and protect themselves from other types of action, but they don’t intend to generate significant license revenue from it. At a minimum, just about every company should be doing these types of patents.
Companies looking to be acquired often try to quickly build up a patent portfolio concentrated around their core business. The goal is to help increase the value of the company by assuring suitors that the business will not be wiped out by a patent lawsuit the day after the company is bought and that there are still plenty of new products for the company to build based on the patents they hold.
Encouraging patent filings
Companies that want to start building their patent portfolio need to offer incentives to their employees to encourage them to submit ideas to be considered for patenting, and they need to create a process to support the review of the incoming ideas.
This usually involves a patent committee, typically comprising the CTO, CLO, and CMO, to formulate the corporate patent strategy and review and select submitted ideas for drafting into patent applications.
It also includes an incentive program, where employees receive a bonus if one of their ideas is selected for filing, and another bonus when the patent is issued. One of my previous employers paid $2,000 on filing and $3,000 on issuance.
As a product manager, you will not have to write any of the patent applications yourself (see “Anatomy of a patent application” in the accompanying article). You will generally be working with patent attorneys or agents who will draft your patent applications. You should review the applications, however, to ensure that they capture the important points of your invention.
Removing creative restraints
The patent system “added the fuel of interest to the fire of genius, in the discovery and production of new and useful things.”
— Abraham Lincoln, Second Lecture on Discoveries and Inventions
Patents provide a unique opportunity for product managers. While writing requirements or brainstorming, I am invariably bound by the reality of my product, including development capacity, the current architecture, and the release cycle. As much as I try not to be bound by these things, they impact my thinking, to at least a small degree, when considering the future of the product.
As I have started to file patents over the past few years, however, my thinking has changed: When considering a patent, the reality of the product does not matter. I am free to think up whatever cool feature I want—without regard to how hard it is to execute or what my developers have to do first. In fact, I’ve patented things that I don’t think my company will get to for several years, but that I know will be market dominating features when the time comes.
Sometimes when I come back to reality after spending time thinking about the patents rather than product, I actually decide to change the product plans because I’ve thought of something new that is so great it overshadows the things I had planned during the normal process.
In addition to this blue-sky thought process, I evaluate every requirement I write for “patentability.” Each time I write a requirements document, I list the requirements that I think are novel and not obvious and then select the ones from there that I want to forward to the corporate patent committee for consideration.
Making patents a part of every product plan
In the past, I have been frustrated as a product manager by having many great ideas, but only seeing a few implemented. Patents are a terrific creative outflow that gets my ideas down on paper so that, even if they can’t be implemented right now, my ideas are protected so we will have an opportunity to implement them later.
Patents are a new area for many product managers, but they are increasing in importance and should be a part of every product plan.
This is not legal advice. For legal advice, please consult an attorney.
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