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No matter the degree of certainty maintained by an inventor, the processes of research and discovery need to be executed faithfully to develop the evidence and proof of uniqueness and usefulness to third parties (e.g., founders and investors). MULTIPLE SOLUTIONS TO A PROBLEM ARE HIGHLY PROBABLE IF NOT CERTAIN It may be that a vision can be sustained by more than one possible solution, so in thinking forward to creating a business with high sustainability and value, it behooves the inventor/entrepreneur to secure any viable solution so that the eventual new venture has the maximum opportunities within the marketplace.
Thus, finding all potential solutions requires research into what already exists in the form of existing patents that may be acquired or licensed and also defines the “territory”[1] that is protected by that patent. That information is needed so that organic development activities can take place in territory that is not protected by the inventions and patents of others. Thus, solutions may be either acquired or developed organically. An organic solution is derived solely or mostly from the independent work of the inventor or inventors.
Acquiring a patent from another party may be impossible if that patent is owned by a company that is in the business of developing products that depend on that patent. In cases involving university or government research, securing a license is possible if one has not already been acquired under an exclusive license with another party. Or, even if it’s available and licensable, the licensee expectations for remuneration may be judged to be too great. However, many licensees are flexible, so if the patent is important enough to the expected new venture, it may be momentarily secured or fixed through a short-term agreement with the licensee to not license to another party in return for a nonreimbursable retainer/fee.
The permutations possible for securing available patents are numerous, and the entrepreneur needs to be prepared to both find available patents, whether interfering or supportive, and cope with licensor requirements. The important point to remember is that other potential solutions need to be researched and understood for their impact on the entrepreneur’s plans and the inventor’s perception of the innovativeness of his/her idea and target invention. It is also good to remember that at a future point in time, investors will be conducting due diligence and asking questions about potential competing technology.
ORGANIC INVENTION AND INNOVATION
The more likely situation for most entrepreneurs and inventors is that they have an innovative idea in mind based on their knowledge and experiences within a specific area. They may be technology experts in the area and already have sound reasons for believing an invention may be at hand. The patent research discussed above in the context of potential acquisition is an essential first step in discovery even if there is no intention to acquire a patent from another party.
The principal objective in this initial research-and-discovery period is to determine that another party has not already accomplished the innovation. Part of this research is in relation to technology and patents as discussed above. The other part of research involves the exploration of public disclosures made by others that could be found in publications (trade magazines, magazines, journal articles, etc.), the websites of expected competitors, and blogs and sites found on the Internet.
Between the problem and opportunity discovery and the efforts described herein, a good and ideally excellent understanding of where innovation potential lies should be at hand. Often, and especially when more than one inventor or entrepreneur may be involved, it is useful to brainstorm about the problems, environment, existing solutions, and probable solutions. The purpose is to broaden thinking, explore potential solutions, and begin to define the fundamental elements of one or more innovations in anticipation of the coming efforts to define an invention. It would not be unusual to see an idea and innovation become modified in important ways to make sure that an invention is more likely to result in a granted patent.
SUMMARY
During the early period of time when ideation, invention, and innovation are fervently being considered by an entrepreneurial team it is vital to comprehensively conduct research and discovery to ensure that ensuing patents, whether organic or acquired, are more likely to be robust and valuable. Value of course accrues from the ability of the patent to provide one or barriers of entry to potential competitors.
Footnotes
[1] Territory, in the context of the present discussion, refers to the ideas, thoughts, applications, etc., as delineated by the claims of a patent, primarily, but also as may be revealed in any other parts of the patent. The territory defines those areas that are, in essence, off limits to the inventor.