Clash of the Titans

By Jerry Rackley

The the Apple vs. Samsung patent infringement lawsuit went to the jury this week. If you haven’t followed the battle between these two industry titans, Apple claims Samsung violated its iPhone and iPad design patents. Samsung responded with the legal equivalent of “oh yeah? Well take this!” by counter-suing, claiming some of its patents on mobile phone technology were violated. It’s not just the tech industry that’s holding its collective breath awaiting the jury's decision.  Wall Street and smartphone users are biting their nails as well.  Regardless of which side the jury’s decision favors, penalties and future licensing fees will cause these devices we use to cost more.

From the consumer’s standpoint, you might argue that no one will emerge victorious from this legal battle. I don’t see a scenario in which consumers win, and while the corporate winner can claim a moral victory, I’m sure the legal fees for both sides will exceed the GDP of several emerging third-world countries.

The point of this post is not to editorialize on the merits of the case or pick a winner. I’m not a legal expert. This case has, however, forced me to contemplate the merits of patent protection, and how to leverage it in marketing the intellectual property that patents protect.

First, it’s important that I state my position up front: I’m for protecting innovations and IP with patents. It is a good idea. What is also a good idea is to not be naïve about how much protection a patent provides, particularly to smaller companies (read: companies without deep pockets to wage a legal battle). If you’re a startup or solo entrepreneur that has a brilliant innovation you just got patented, congratulations! Now, go watch the movie Flash of Genius to understand that the patent isn’t a force field that repels would-be infringers.

I learned this first hand at the beginning of my career, when I worked for one of the world’s largest corporations. Then and now, it had an impressive patent portfolio and when I worked there, it had never lost a patent infringement lawsuit. Apparently, one of its tactics for victory was to use its vast inventory of patents to countersue. The argument was essentially, “you think we violated your patent? Here are 10 of ours we think you violated. See you in court.” The odds were long when faced with a company that had virtually unlimited resources to wage legal battles.

So what is the value of a patent? From the marketing point of view, they can have significant value by helping position you as a thought leader and innovator. You only get this benefit, however, if you intentionally leverage it. Just having the patent certificate hanging on the wall in your office doesn’t exploit the marketing value of what you’ve done. You have to tell the market about it and why it matters. In other words, it’s not enough to have patented the flux capacitor – you must tell the market that you’ve done so and explain that it’s important because it enables time travel. Now that's cool.

There are two potential unintended consequences to promoting your patent:

1. When you’re telling the world about your genius and the innovation it produced, your competitors are also listening. This doesn’t mean you shouldn’t promote it, but do exercise caution about how much you reveal. Don’t let your pride of authorship lead you to spill your technical guts. Instead, focus your communications on the value the patent can create, not the technical details.
2. Potential acquirers or investors are also listening. You may get some attention you hadn’t planned on from entities that wish to buy the company, the patent or license it. These are generally welcomed inquiries or at least flattering.

If you have a patent for your innovative work, consider yourself fortunate and don’t be naïve about how much protection it provides. Then, after fully considering the potential unintended consequences, consider publicizing it to enhance your company’s brand and reputation.  This process often begins with a press release. Use the Demand Metric Press Release template to prepare yours.