Editor’s Note: This is part nine of a series entitled “Building an IP Aligned Enterprise: A Guide for Corporate and Technology Leaders.” We will explore your IP counsel’s role in monitoring competitive activities and analyzing your IP landscape. 

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As we’ve explored in this series, your Innovation Committee is the driving engine charged with shaping and executing IP strategy, and further informing your overall business strategy. Key innovation stakeholders from across your organization work together within your Innovation Committee to bring about full IP alignment. 

At this stage in your IP alignment journey, your enterprise has matured into an organization where the critical functions of your IP strategy are well-developed and actively in play. Among other aspects of an operative IP strategy, you’ve become aware of the valuable IP assets you hold; there are systems and protocols in place to capture emerging assets; and a solid, ongoing IP education curriculum has been implemented across departments. 

While much of your efforts toward IP alignment have thus far been focused inwardly on building the infrastructure within your organization to develop, capture, monitor, and educate around your IP assets, it is now time to turn that focus outward toward the wider competitive playing field.

 As your organization comes into a state of full IP alignment, it is crucial to keep a disciplined eye on the broader IP landscape and on your competition’s innovations.

Here, your IP counsel will play a central role in monitoring the state of play both in the market spaces in which you directly compete, and in those that may be developing relevant IP outside your immediate sphere of competitive activity.  

For many organizations, your general counsel and executive team may wish to bring in specialized, third-party IP counsel to perform the specific tasks around IP landscape analysis and competitive monitoring. Among the duties an IP counsel team may perform as part of its remit can include:

  • Providing C-level, legal, and R&D stakeholders monthly reports about relevant IP activity of your market.
  • Making recommendations for obtaining legal opinions concerning specific concerns, threats, or areas of growth.
  • Revisiting your current product line and the attendant patents to identify your own infringement risks as well as to ensure competitors aren’t infringing on your IP assets.
  • Providing the data necessary for development teams to have a clear sense of where their efforts can be focused and strengthened.
  • Assessing what patents in the marketplace are competitive risks and helping to steer business strategy around that data.
  • Identifying potential infringers, licensees, or even acquisition targets based on their patent activities.

These data provided by IP counsel to your Innovation Committee serves the overall purpose of growing your own IP footprint, which is perhaps the most vital outcome for the growth of your enterprise and the security of your market position. In order for counsel to make good on these and other important deliverables, they will perform a series of patent and competitive analytics activities.

We recommend that your Innovation Committee in concert with your IP counsel establish a rhythm of two key ongoing IP analytics activities: Competitive Monitoring and Competitive Landscape and Whitespace Analysis.

Competitive Monitoring 

Ongoing monitoring of your competitors’ patent activities aims to identify exploitable gaps in your IP environment in order to steer the development of new innovation and strengthen your overall market position. Over time, collecting data points around these important areas helps to form a dynamic and evolving portrait of competitor activity which can be leveraged at any stage of your IP development and protection strategy. 

Your IP legal counsel will be tasked with preparing monthly reports detailing salient IP activity in your competitive landscape. Working with your Innovation Committee, counsel will want to develop customized processes for monitoring the patent activities of known competitors or technological developments within your sphere. These processes will often employ a combination of software solutions and human intelligence to render a comprehensive picture of relevant patent activities. 

Over time, as your understanding of your competitive ecosystem deepens, the data garnered from your monitoring efforts will help your legal team and Innovation Committee to develop a broader awareness of infringement threats or product development obstacles. Further, your competitors’ technology trends will come into focus, and you’ll better be able to identify potential new entrants into your market. 

Armed with a more complete awareness of your competitors’ IP strategies, the insights gleaned from competitive monitoring can inform your own business or IP strategy. They may even serve as inspiration for your product development or for identifying possible acquisition candidates to broaden your asset coverage. The results of your monitoring efforts may also uncover areas of innovation within your own organization that necessitate obtaining legal opinions, initiating new patent filings, or adjusting your product development pipeline.

Competitive Landscape and Whitespace Analysis

With the guidance of your IP legal counsel, your Innovation Committee should consider implementing an ongoing review of your company’s relevant IP landscape on a quarterly or biannual basis depending on company and industry needs. In order to perform effective analyses of your IP landscape, you will use both software and human intelligence to create a comprehensive report of current and emerging patent data within your innovation space. 

Unlike competitive monitoring, which flags changes from one month to the next, landscape and whitespace analysis provides a broader view of trends and technological developments. It allows you to step back and see the whole forest and its features and contours without getting bogged down on the minutiae of the individual trees.  

Competitive landscape and whitespace analysis are complementary sides of the same coin within patent analytics. In brief: 

  • Landscape Analysis identifies the risks and obstacles to your technology development.
  • Whitespace Analysis assesses the opportunities for obtaining front-runner status in emerging technologies where the whitespace reveals gaps in your and your competitors’ technologies.

Such analyses are crucial to keep a disciplined eye on the broader IP landscape for several important reasons:

  • Understand the state of the art. Having a dynamic comprehension of your particular field of play allows you to know your place in the wider competitive sphere and determine what unique contributions your company can make.
  • Know your competition. The best way to stay ahead of your competition is first identifying who they are as they arise, and what patents they hold over the technology used in your particular market arena. Keeping an eye on their movements helps guide your decision-making.
  • Mitigate risk. Developing new inventions nearly always requires the use of existing technology. Proper analysis will help your developers navigate around competitors’ extant IP, and to find the gaps within that IP where your team can innovate.
  • Identify licensing and acquisition opportunities.  A thorough analysis of the IP landscape can show you where your competition might be infringing on your IP, giving you an opportunity to offer them a lucrative licensing agreement to avoid litigation. Alternatively, you may find other companies who have already developed IP you’d like to own yourself, setting up the foundation for a potential acquisition of that company or their individual patents.

Conclusion

At this mature stage of IP alignment, engaging your Innovation Committee in an open and interactive relationship with IP counsel – either in-house or third party – to regularly monitor competitor patent activities, assess the overall IP landscape, and identify potential whitespace opportunities for development or acquisition will result in a stronger IP asset portfolio that more precisely targets patent protection and is more aware of potential threats. 

Undertaking a sophisticated, dynamic, and forward-looking innovation strategy that includes monitoring and analyzing the wider competitive sphere from an IP perspective will allow you to maintain a business strategy that is up to date with current technology trends in your market. Staying ahead of your competition and the ever changing state-of-the-art in your marketplace is the key to establishing and maintaining a strong and sustainable market position for growth.

 

             Thomas DeFelice

This article is for informational purposes, is not intended to constitute legal advice, and may be considered advertising under applicable state laws. The opinions expressed in this article are those of the author only and are not necessarily shared by Dilworth IP, its other attorneys, agents, or staff, or its clients.