COVID-19 has caused many companies to hunker down, protect the status quo and embrace a conservative mindset. But some are taking this time to seek out intellectual property (IP) opportunities, and they are doing so in new ways and in new places.
David D. Headrick, McAndrews, Held & Malloy, Ltd.
(Image courtesy of Rohan Makhecha on Unsplash)
It is said that 80% of the information in patents is never published anywhere else. Despite this treasure trove of knowledge, many companies do not systematically examine patents others are pursing. Patent mapping — sometimes called landscaping — allows one to use search terms, patent classes and a database to see what patents others are pursing in a given field.
Years ago, this effort would entail excruciating, costly manual work. But today’s cloud-based software makes collecting and visualizing such information easier. For a given field, one can determine who is filing for and obtaining patents, how quickly they are filing and where such patents and applications are concentrated. The results can be surprising.
Who are your patent competitors?
“Competitors” in a given patent space are not the same as they are in the commercial marketplace. Universities, startups and small companies file for and obtain patents in areas of interest to medical device companies. Other companies may be filing and obtaining patents that use technology of one field in another. These situations can represent opportunities to those who take the time to study the data.
Patent landscapes can provide valuable opportunities for a company whether by license, acquisition or joint venture. This is particularly true now as many IP holders look for ways to raise revenue. Even if you make no acquisitions or enter no agreements based on your efforts, you can gain vital competitive intelligence as to what is going on in technical fields of interest. Patent landscapes can also help your company make strategic decisions and stimulate in-house development efforts. But consult with IP counsel as to how to appropriately share the details with your innovators.
Tap into technical sales
With the COVID-19 pandemic limiting or even preventing in-person sales calls, sales staffs may have idle time. Here are a few ways a medtech company can exploit the situation:
— Apply the sales staff’s technical knowledge to work with IP counsel to locate and eliminate grey- and black-market goods that eat away at market share.
— Organize a series of collaborations between your innovators and technical sales staff by videoconference or in-person, with social distancing, to overcome the drag on creativity that can accompany working at home. Consider enhancing, again under appropriate conditions, their collaboration with the kind of patent landscape analysis described above.
Such initiatives will help ensure that the innovation pipeline continues to flow even though we all may be working separately in the near term. They can also build team camaraderie.
Consider IP pledged to fight COVID-19
The COVID-19 pandemic has not only spurred a worldwide research effort — it has led organizations to make certain IP rights freely available via “open licenses” to those working to develop products for fighting the virus. Open COVID Pledge (OCP) is one example of such an organization that seeks “to accelerate the rapid development and deployment of diagnostics, vaccines, therapeutics, medical equipment and software solutions in this urgent public crisis.”
OCP claims that IP holders have pledged the free-use of more than 250,000 patents to date — all of which are searchable on OCP’s online database. The term of the open license extends 1 year after the World Health Organization declares COVID-19 is no longer a pandemic. Obviously, a company should exercise care before implementing such open technology in any product it might develop. But efforts like this represent a massive IP resource that did not exist until a few months ago.
These may be unprecedented times but companies, particularly those that rely on design and innovation for their business, should consider the unique IP opportunities that are available.
David D. Headrick is a shareholder at McAndrews, Held & Malloy (Chicago) with experience in both intellectual property litigation and advising clients on strategic intellectual property matters. He is recognized by IAM Patent 1000, and his practice also includes client counseling, intellectual property licensing, clearance opinions, intellectual property due diligence and patent and trademark procurement.
The opinions expressed in this blog post are the author’s only and do not necessarily reflect those of Medical Design and Outsourcing or its employees.
