The IP Perspective with Chris Juhasz

‘You go out into that ring and you give it absolutely everything you’ve got! After all, second place is the first loser!’ Dale Earnhardt, Race Car Driver

The life of an entrepreneur is both exciting and mildly terrifying at the same time. When developing their latest innovation as stealthily as possible, entrepreneurs are sure in their conviction that it is going to change the world, and equally as sure that their competitors are working to the same end. Yet perhaps they are less sure about how they will win the technological race and secure their position for their commercial advantage.

Whilst the above may be true for any number of start-ups nowadays, or Jeff Bezos in the late 1990’s, it is also true for the 1870’s when Bell, Grey, Meucci, and Edison, amongst others, were all working on a wondrous device, the so-called “telephone”. Hence considerations that were important then are equally applicable now.

Despite what popular culture may like you to believe, there are very few things in this world where not being first is fatal. Usually, if you don’t “win” there will be another opportunity to try again, perhaps after some reflection, and further work, to place in a better position. As Dale Earnhardt also said, ‘Finishing races is important, but racing is more important’.

The obvious exception is putting on your oxygen mask first in the event of an airline emergency, a less obvious exception (although may be equally as fatal for a business) is the timing of filing a patent application to protect your technology. The patenting system works on a “first-to-file” basis, under which earlier filed patent applications have priority and count against later filed patent applications, as do earlier public disclosures and use of technology.

If you get the timing of your patent application right, and obtain a granted patent, you enjoy a monopoly in respect of the patented technology for the life of the patent. Good things arising from such a monopoly can come your way, such as options for premium pricing, licensing, enforcement, capital raising, defence, and bargaining.

Get the timing of your patent application wrong, and earlier filed applications, public disclosures and use could all count against you and prove fatal to your application, preventing you from being granted patent protection for your technology and enjoying the advantages arising therefrom.

Let’s step back in time for a moment, in the case of the telephone, Bell ultimately prevailed, and was granted US Patent on 7 March 1876.

The circumstances of the granting of his patent have been considered somewhat controversial (and I refer you, gentle reader, to the Wikipedia entry “Elisha Grey and Alexander Bell telephone controversy”, in this regard, for a stirring tale), to the extent that Bell was presented with many lawsuits challenging it. It nevertheless survived those challenges and formed the foundation of the Bell Telephone Company.

The moral of the story? Because Bell timed his patent application just right, Bell was able to obtain granted patent protection for the telephone, to the detriment of others working in the area, which did not go down so well.

Whilst I am not sure what IP management practices Bell formally employed to turn his intellectual property into a business asset for his commercial advantage, he was certainly proactive, being aware of the IP landscape and the activities of his competitors, capturing his IP and taking steps to protect it at the most opportune moment.

Not unlike Bezos (and co) more than a century later. Follow their lead, and you could be well on the way to founding the next trillion dollar company!

Wrays Industry Insights, Insights