The Patent Game: Synseal Sales & Marketing Director lifts the lid on patents

I wrote a piece a while ago about patents, and the games people play with them. What I particularly disliked was the way some manufacturers cynically misuse patents to create a barrier which only those with deep pockets can afford to penetrate. Don’t get me wrong. Using patents to protect genuine innovations is legitimate and necessary in many instances. But when well-heeled companies lay claim to everything and anything to stifle legitimate competition it is an abuse that we could do without.

Now, once again, patents and patent infringements in the conservatory industry are back in the news. Isn’t it interesting that it’s always conservatory companies that are involved in legal knockabouts? The rest of our industry – windows, doors, hardware, software, glass seem to get on without these expensive confrontations. Maybe it has something to do with the history of the market. But every month it seems there is claim and counter-claim in the trade press as companies try to use intellectual protection to create and defend space in which to operate.

A Battle of Words

If you are not a legal expert it can be confusing. On more than one occasion recently we have seen two press releases issued on the same day from two sparring conservatory roof companies on the ‘conclusion’ of a court case. Amazingly, both were celebrating a win! How can two parties claim victory? Then there is usually a sentence at the end of the release referring to further concluding action to come. Confusing it may be, but what’s happening is important, and not just to the two contestants. A close reading of the statements usually shows that each had landed a punch, but neither was a knockout. In one, a patent might not have been upheld, but design rights were infringed and licence payments due. One party might be awarded costs, while the other was appealing. Companies with a taste for legal protection and a readiness to resort to the courts can find themselves fighting on many fronts as different rivals call their bluff.

Potential losses can be huge. Then there are the heavy costs of the lawyers and specialists who do the fighting. On top of that there is senior management time involved in preparing and attending court and – probably the greatest cost – the distraction from the business. Even apparent victors have to shell out.

Regardless of who announces they’ve won or lost, substantial court fees, and all the other costs involved in reaching this conclusion make a dent in even the biggest company’s profits. Some patent cases run for years – and have done in the conservatory industry – and cost millions. The wasted time and diversion from the business costs even more. But the real losers are customers. Their suppliers have less time and money to invest in future product development, less time to listen to what they want, and fewer resources to invest in customer development and marketing support. And if your supplier is on the losing end, your competitive position could be weakened. Winning and losing are rarely clear cut. Losing can be fatal, but winning can be wounding too.

customers need money going into real innovation, not into the pockets of the lawyers, who are the only real winners

The Not-So-Wonderful Wizard of Oz

Patents are deterrents, signs to warn people off and stop them infringing. But like nuclear weapons, they’re only successful if they deter. Once rivals stand their ground and challenge, even if it is only partially successful, there’s a problem. Especially when someone has laid claim to something ridiculous in the belief that a wall of patents will deter smaller, less well endowed competitors.

If rivals are deterred it can be a successful strategy. But once someone challenges, the wall is weakened. When others have a go too the wall can fall. In truth, once anyone challenges, the patents are no longer doing their job – and the strategy is history. Betting the farm on the probability that no one will challenge is a high risk strategy.

Remember the story of the Wizard of Oz? His fearsome voice and imposing castle controlled the inhabitants of Oz. That is until Dorothy entered the castle and pulled aside the curtains to find a wizened little man peddling furiously on a bicycle that powered the generators that amplified his voice.

If your quality, products, prices and service are good your business will prosper, without resorting to flimsy patents and continuous court action. This is an exciting industry with great prospects, but customers need money going into real innovation, not into the pockets of the lawyers, who are the only real winners.