Protecting patents by ‘defanging the snake’

A hissing Aesculapius snake (Zamenis longissimus) in the grass with its tongue out

Patents are great, but they’re just bits of paper. Like any rule or regulation, a patent is only effective if you can defend it.

Defending a patent isn’t just about hiring an army of lawyers. A legal team is fantastic – especially when a general counsel knows your product intimately – but patent defence is a full spectrum effort. Everyone can get involved with the power of intangible assets.

Patents are meant to protect unique discoveries. Unless a company has invented something new, chances are it has only innovated. This means the product is different, not new. It may be the best mousetrap in the world, but that still means there are other mousetraps out there and those other companies will be watching with eagle eyes for any opportunity to copy a new idea.

However, if the only thing protecting your idea is a patent, there’s a good chance those rivals might follow the tactic of “asking for forgiveness later” and simply steal it. After all, any penalty for breaching patent law might well be less than the profits they could generate by copying the idea and moving to market faster than you.

Small businesses get steamrolled by this tactic all the time. It’s a cutthroat world.

Speaking of cutthroat, the world of martial arts might have a solution to this problem. The answer is derived from the Filipino martial arts concept of “defanging the snake.”

The hypothesis is that, generally speaking, two humans fighting without weapons have fairly even odds of victory. By introducing a weapon to one side, the odds of victory for the weapon-holder rise to nearly 100%. So, the goal of any martial artist should be to remove the weapon from their adversary by any means necessary – to “defang the snake.”

The tactic is amazing to witness from the outside since the fighter will appear to be doing a million different things at once. They might attack their opponent’s wrist, knock them off their feet, use a magnet to grab the knife or even throw a piece of newspaper in their face to distract them. What looks chaotic is actually highly coordinated because every move is about achieving the same goal: remove the weapon.

Now, let’s apply this to defending a patent.

As mentioned at the outset, a patent is just a piece of paper. It basically says the holder has the sole right to commercialise an innovation. No other company can bring the same kind of special mousetrap to market, under threat of legal action. Usually, such legal action is backed up by the state’s power which means infringers can receive serious penalties if they are caught.

In theory.

However, patents are only as strong as the authorities’ ability to enforce the rules. Companies that operate in foreign jurisdictions, for example, can copy a patent to their heart’s content since they most likely won’t be subject to the same rules. There are plenty of reasons why a rival company might be able to get away with infringing on a patent.

This is a problem if a patent is all your company has.

But what if your company could wrap a dozen other intangible assets over the top of a patent and turn a product or service into something that is impossible to copy?

If you could do that, your company would appear to be doing a million different things. Yet each move would have the same unifying goal of “defanging the snake” – stopping rivals from copying your precious innovation.

For example, you might have a strategic relationship with key retail outlets and distributors. Someone from your team might know the CEO of Walmart extremely well and is just a phone call away from setting up an exclusive deal to stock the new mousetraps.

Your company might also have huge pools of high-quality customer data gathered over decades. The company knows what customers want in a mousetrap, when they buy their mousetraps, what they’re happy to spend and a thousand other critical data points. By collating these data into insights, you can build a better picture of the mousetrap market than any rival.

And the ever-useful intangible asset is brand.

If your mousetrap company is known by customers for its many other quality products, great customer engagement and easy-to-set-up traps such a strong brand would be almost impossible to replicate. Even if an innovation is stolen, the thief can’t steal the brand. Think of all the knock-offs of the LEGO or Coke. They just aren’t the same as the original.

“Defanging the snake” is also the perfect tactic for small companies. Fighting in court is expensive and can bleed a startup to death. However, if a small firm can deploy its intangible assets wisely, it can boost its ability to protect even the flimsiest of patents. It’s always better to spend money on assets than lawyer fees, and the stronger your constellation of assets the more deterrence this presents for would-be patent thieves. After all, no one can steal your brand!

A patent holder will appear to be doing a million different things, but it is all in service of a single goal: defend the patent. That’s why all your intangible assets must be linked together in a constellation.

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