Questions Your IP Counsel Should Ask When Performing Competitive Monitoring & Analysis
Dec 13th, 2022 by Thomas DeFelice | News |
To be a leader in the innovation marketplace means that you understand the vital importance of maintaining a close watch on your competitors’ innovation activities. This is true both in the arenas in which you currently compete as well as in those where your enterprise plans to develop and compete.
Ongoing competitive monitoring seeks to create a dynamic portrait of the overall patent activity within your competitive sphere, while competitive landscape analysis provides a broader view of technology trends and developments. Both efforts work in concert with each other to help you know your competition, mitigate infringement risks, and identify licensing and acquisition opportunities. Crucially, competitive monitoring and landscape analysis help identify the guideposts for your own innovation initiatives.
Monitoring and analysis strategies are highly specialized activities, employing both machine learning software platforms and human expertise to design and implement relevant search parameters, interpret returned data points, and render a comprehensive and fluid depiction of the competitive playing field. Many innovation leaders will choose to bring in outside IP counsel charged with, among other tasks, undertaking the execution of competitive monitoring and analysis.
Expert IP counsel can work with your legal team and executive leadership to provide valuable insight into the data and recommendations to steer your company toward actionable awareness around your competitive landscape. Among other deliverables, they can draft monthly reports to relevant departments about IP activity in your market; identify threats, infringement risks, or areas of growth; and pinpoint gaps in the competitive sphere to aid in the future development of patentable innovation.
As they approach their work, here are some questions your IP counsel will want to answer to formulate a full picture of your competitive environment and define the attendant actions you’ll want to take once armed with the data they uncover.
What are you monitoring?
Before establishing a competitive monitoring regime, you should have a clear set of goals around which you’ll structure your efforts. In consultation with stakeholders from executive leadership, legal, and R&D, identify key objectives and outcomes you’re looking to achieve. Define the specific technology or industry areas you’re interested in and focus your monitoring on the goals you’ve specified.
For instance, if you’re looking to move into a new technology area, you might focus your monitoring into those markets where you’re not currently active. That focus may narrow depending on your strategy for entering this new field. You may be looking for exploitable gaps in the technology space to steer the activity of your R&D teams. Alternatively, you might be looking to acquire companies already established in this new arena in order to assimilate their IP assets and take over their market share. Having a clear IP strategy will give direction to your competitive monitoring routine.
Who are your direct competitors?
The first and most obvious place to target your competitive monitoring is on the patent and product activity of your identified direct competitors. The nuances of your monitoring queries will depend on the goals you’ve set out in your own business strategy. For example, if the company you’re researching is quite a bit larger than yours, perhaps looking at their broad patent activity isn’t necessary. You may only be competing in a specific technology area, in which case your monitoring activity should focus on that section of their IP portfolio.
On the other hand, you may identify a smaller startup competitor who is developing niche technology that could be disruptive to your larger market. The data you gather from competitive monitoring can inform decisions around licensing or acquisition opportunities that neutralize any threat to your market share and help you gain a foothold in a new innovation sector.
Where is your product development headed?
The growth of your company and the security of your market share depends upon the ongoing innovation of your development team. Intangible assets like patents, even if they aren’t being used in your products, are central drivers of your company’s market value.
In conjunction with your regular competitive monitoring efforts, your IP legal team should also undertake a quarterly or biannual competitive landscape analysis. While competitive monitoring looks at the specific patent activity of your direct and indirect competitors, landscape analysis offers a bird’s-eye view of the competitive field and the obstacles and pathways before you.
Keeping your finger on the pulse of your competitive landscape will provide your development team with the data necessary to have a clear directive for their innovation efforts. Landscape analysis will not only inform your more specific monitoring strategies but can help save money and valuable time to market by avoiding costly redesigns.
What changes are happening in your technology areas?
Competitive landscape analysis gives you an overview of the dynamic state of play in the wider technology field in which you compete. Understanding the influence other actors in this sphere are having on the technological state of the art can inform your development activity in kind.
A clear picture of the broader innovation landscape and the evolving technology trends driving it offers clues toward the overall direction of the market and can provide inspiration for new product lines or next-gen product features or improvements. Further, a zoomed-out view of your competitive field can help you find other possible ways to leverage and monetize your own IP by surfacing potential infringement or revealing possible licensing opportunities.
What are some other applicable technology industries?
There is obvious value in monitoring the patent and product activity of your direct competitors. Perhaps less apparent is the need to focus your competitive monitoring efforts on adjacent technological fields or other areas that you may be looking to expand into. In those areas, you’re likely to find companies whose products may not compete directly with yours, but the technology used to create those products might have novel applications in your innovation space. For instance, an auto manufacturer and a cell phone maker might both be developing a smart sensor that reacts to a voice command. While they are not traditional competitors, they are competing with one another for the intellectual property rights to that technology.
Who are your unknown competitors and how can you identify them?
You likely have a slate of obvious competition within your market space where your IP legal counsel can focus their monitoring efforts. The market is dynamic, however, and disruptive forces are always vying for a foothold. Ongoing competitive monitoring and, less often, competitive landscape analysis reporting should focus not only on the activities of your known competitors, but also on surfacing companies in and out of your direct competitive sphere. Often, smaller companies bring novel innovation into the field and offer new possibilities for your own growth through M&A and licensing opportunities.
The goal of competitive monitoring is to maintain an up-to-date understanding of your competitors’ patent activity in order to identify exploitable gaps within the market landscape and help steer your development team toward patentable innovation. Your IP counsel should prepare monthly briefs for executive leadership to include reporting on new patent filings, product releases, and M&A activity within your competitive sphere.
By gaining a deeper understanding of your competitors and their patent activities over time, you can create an evolving and in-depth understanding of your place in your market and be better positioned to make important decisions around your own IP development and protection.
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.