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2. PATENTS



2.1 What is a Patent?
2.2 How Can a Patent Be Important?
2.3 What Can Be Patented?
2.4 Provisional Patent Applications
2.5 Patent Application Publication
2.6 Emerging Patent Classifications
2.7 Patent Protection Strategies
2.8 Summary

2.1 what is a patent?^

Patents are provided for by the United States Constitution. Article I, Section 8, Clause 8 of the Constitution states:

The Congress shall have power ... To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.

It is noteworthy that the Constitution aims to promote science and useful arts by giving exclusive rights in inventions and writings to the inventors and authors for a limited period of time. This provision of the Constitution has been implemented by Congress in part by the United States Patent Statute.

Under the patent statute a system has been created whereby inventors are awarded patents for their inventions and discoveries. A patent grants to the inventor the right to exclude others from making, using, offering to sell, selling, or importing the invention as defined in the claims of the patent. United States utility patents are effective for a period of 20 years from the date the application is filed with the United States Patent and Trademark Office. (For patents based on applications filed before June 8, 1995, the patent term is the longer of 20 years from the application filing date or 17 years from the issue date.) It is important to note that the patent may not actually issue for two or more years following the application filing date.

2.2 how can a patent be important?^

Patents represent a limited monopoly granted to the inventor of an invention or discovery. A patent is a "negative right" in that it is a right to exclude others from making, using, offering to sell, or selling the invention. This means that the owner of a patent has the legal right to exclude others from utilizing the owner’s patented technology in any market within the United States for the term of the patent. Hence, if a patent covers commercially significant technology, then the owner enjoys a commercial advantage until new and better technology is invented or the patent expires. This right can be of extreme importance in building a viable business.

Patents provide the inventor with a time period during which he or she can develop and manufacture the invention and market it without interference from competitors. Thus, an inventor of the better mousetrap is given the opportunity to profit from that mousetrap without facing competition from similar mousetraps manufactured by the competition. The patent does not preclude the competition from developing further improvements based on the information provided by the patent, but at least the inventor should not encounter competition from a "knock-off," or near-copy, of the patented invention.

A patent however, does not give the inventor any affirmative rights. In that regard, even if an inventor holds a patent, the inventor may

not have a right to practice the invention due, for example, to state or federal law (such as health or safety regulations) or because the inven-tion infringes the claims of another patent.

A patent is unique in intellectual property protection because it can protect the underlying ideas and concept that make the invention use-ful. As will be discussed below, this is a significant difference between patents and copyrights. Copyrights do not protect the underlying idea. Patent claims may be available that exclude your competition from using the underlying idea in separate, but competitive, products.

Further, it does not matter if a competitor independently develops technology that you have patented. That competitor could not practice that patented technology without being subject to liability for patent infringement.

Patents can represent a formidable weapon in the marketplace. Dam-age awards for patent infringement can be quite significant. One good example is the case of Polaroid v. Kodak, in which patent infringement damages in the amount of $873 million were awarded, along with an injunction against further marketing of the infringing camera. In recent years, plaintiffs in patent infringement suits have been awarded hundreds of millions of dollars in damages and royalties.

While history indicates that patents can provide valuable protection against infringing competitors, more recent cases hint that the disposi-tion of the courts may be changing. The first step in a patent infringe-ment suit is construing the claims, which involves determining what the claim specifically states and also what types of inventions would be equivalent to what is claimed. The practice of protecting inventions that are equivalent to the invention claimed is commonly referred to as the Doctrine of Equivalents. The court’s application of the Doctrine of Equivalents often determines the outcome of the case. Many of the more recent court decisions indicate that the courts are beginning to construe the plaintiff’s claims much more narrowly, thus favoring the defendant by limiting the scope of the Doctrine of Equivalents.

In Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 535 U.S. 722 (2002), the United States Supreme Court applied many of the recent narrowing techniques but also applied a rule of law that may make patent infringement suits more difficult in the future. The Festo rule significantly affects the inventor’s potential for recovery in an infringement suit, based on activities during the application and prosecution phases of acquiring a patent. To ensure successful patent protection against infringers, it is important for the potential patent owner to consult a qualified intellectual property attorney upon recognizing potentially patentable innovations.

Additionally, patents can provide a strong deterrent against competi-tors. For the right price, competitors may opt to license your patented technology rather than spend the time and effort necessary to avoid infringing the patent. Patents provide the technology company with a convenient package of technology to offer for license. Many companies and individuals thrive on royalties received through patent licensing.

Patents also offer significant intangible value to a technology company or individual owner. Companies often point to their patent portfolio as evidence of their preeminence in a particular industry. Customers, including the federal government, are often affected in their purchasing decisions by the strength of a company’s patent portfolio.

2.3 what can be patented?^

In order to be patentable in the United States, an invention must satisfy the conditions for patentability provided for in the patent statute. These conditions include the following:

PATENTABLE SUBJECT MATTER^

The patent must relate to patentable subject matter. Subject matter that can be patented includes "any new and useful process, machine, manu-facture, or composition of matter, or any new and useful improvement thereof." Patents generally cover items such as machinery, industrial or business processes, electrical and computer goods, chemicals, and ornamental designs. Patents are not generally available for mathemati-cal algorithms or principles of nature. However, patents are available for computer software implementing algorithms and principles of nature. Patents are also available in the medical and biotechnology areas where someone has made a modification to a naturally occurring substance or life-form, or has isolated and purified such a substance.

THE INVENTION MUST BE NEW^

In order to be patentable, the invention must be new and not already in the public domain. It is possible for the inventor’s own invention to fall within the public domain and thereby render the invention "old" under the patent statute. In particular, if the invention has been described in a printed publication, sold, offered for sale, or placed in public or commercial use more than one year before filing a patent application, the inventor’s patent rights are barred. Most countries other than the United States are even stricter, requiring that an application be filed before any public disclosure of the invention. In addition, if the inven-tion is invented by another or is the subject of publications or patents filed by another, the inventor’s rights may be barred.

For these reasons it is important to file promptly for patent protection. It is generally recommended that a patent application be filed before any publication, sale, offer for sale, or public or commercial use of the invention. In this manner, it is possible to preserve United States patent rights and also to maintain the option of pursuing patent protection in most foreign countries.

THE INVENTION MUST NOT BE OBVIOUS^

During examination of the patent application by the United States Pat-ent and Trademark Office, a determination will be made as to whether the invention is obvious in view of material known to the public. Obviousness is an objective standard that has been applied somewhat subjectively. The determination of obviousness is generally made using a three-step test. The test is as follows:

1. Determine the scope and content of the prior art, i.e., information that is publicly available in the field of the invention;

2. Ascertain the differences between the prior art and the claims contained in the patent application; and

3. Resolve the level of ordinary skill in the pertinent art.

After these steps are taken, a determination is made whether the inven-tion would have been obvious at the time of invention to one having ordinary skill in the art.

In order to overcome an argument that an invention would have been obvious, it is not necessary to show that the invention represents any particular magnitude of advancement in the art. It is only necessary that the invention not be obvious. In that regard, it is not unusual for relatively small advancements or modifications of the existing art to be entitled to patent protection.

2.4 provisional patent applications^

The U.S. Patent and Trademark Office accepts "provisional" patent applications. Provisional patent applications provide a mechanism whereby applicants can quickly and inexpensively establish an early effective filing date. The effective filing date can be used to prove that the inventor knew the material disclosed in the provisional application prior to public disclosures, sales, or the inventive efforts of competitors. The filing of a provisional application provides up to twelve months to further develop the invention, determine marketability, acquire fund-ing or capital, seek licensing, or seek manufacturing before a full utility application must be filed.

A subsequent utility patent application may be filed at any time within one year of the filing date of the provisional application and claim the benefit of the provisional application filing date. If a subsequent application is not filed within one year, it cannot claim the benefit of the provisional application filing date. The filing of certain foreign patent applications may also be required within the one year period. Importantly, the patent term is not measured from the filing date of the provisional application, but rather from the filing date of the utility patent application.

A provisional application is only required to include a specification and a cover sheet. The filing fee is significantly lower than the filing fee for a regular utility application. There is no requirement for claims, an inventor’s declaration or oath, or any particular format. The provi-sional application will not be examined or published in its initial form, so the organization and format of the application is not as important as in a regular application.

The provisional application is, however, required to satisfy the Section 112, first paragraph requirements, i.e., the "written description," "enablement," and "best mode" requirements. As the Federal Circuit ruled in New Railhead Mfg. v. Vermeer Mfg. Co., 298 F.3d 1290 (Fed.

Cir. 2002), subsequent claims based on the provisional application will not receive the provisional filing date if these requirements are not met.

2.5 patent application publication^

Until recently, all patent applications filed in the United States were held in confidence until a patent issued from the application. Because the Patent and Trademark Office kept the applications confidential, applicants could keep their inventions secret until the day the patent issued.

However, most foreign countries publish patent applications 18 months after the filing date of the application. The American Inventors Protection Act (AIPA) places United States patent law more in line with foreign patent law with respect to publication. A non-provisional patent application filed on or after November 29, 2000 will be published and available to the public 18 months from the earliest filing date from which benefit is sought. Applications filed before November 29, 2000 may be published if an applicant voluntarily elects to do so.

An application may still be kept secret if patent protection is only sought in the United States. In such cases, the applicant must file a nonpublication request upon filing the application. The applicant must also certify that invention has not and will not be the subject of a published foreign application. If an applicant requests that an application not be published and later files in a country that publishes its patent applications, then the applicant must notify the Patent and Trademark office within 45 days of filing abroad, and the application will be published in the United States.

The AIPA also creates provisional rights in the claims of a published patent application. An applicant can recover damages for direct infringement of patent claims that later issue in a substantially identical form when the infringer has actual notice of the published patent application. Thus, an applicant may recover for infringing activity that occurred before the patent issues.

2.6 emerging patent classifications^

The American Inventor Protection Act is not the only change that has occurred in recent years in patent law. As technology advances faster than most people can imagine, the world, including the courts and the patent office, has recognized the increased importance of patent protection. In just the last twenty years, there have been major court cases that have broadened the scope of innovations that are patentable. Some of the fields that have recently become patentable include: computer software that produces a tangible result, business methods, and biotechnology.

COMPUTER SOFTWARE PATENTS^

The US patent statute provides that a patent may be obtained for "...any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof..." (See 35 U.S.C. ß 101.) Generally, this means that computer hardware in all its varieties is patentable subject matter. Therefore, so long as the other statutory requirements for a patent have been met (described in the patents section of this manual), patents for computer hardware are generally granted.

Conversely, computer software has been more difficult to patent. This is due largely to a court made requirement that a patent not be allowed for "laws of nature, natural phenomena, and abstract ideas," this includes mathematical algorithms and formulas. (See Diamond v. Diehr, 450 U.S. 175, 182, 101 S.Ct. 1048, 67 L.Ed.2d 155 (1981)) Recently, a landmark case State Street Bank & Trust Co. v. Signature Financial Group, 149 F.3d 1368, 47 U.S.P.Q.2d 1596 (Fed. Cir. 1998) established that the law that prohibits patents on natural laws and phenomena is not violated if the software provides a "useful, concrete and tangible result." (See State Street Bank & Trust Co. 149 F.3d 1368, 1373, 47 U.S.P.Q.2d 1596 (Fed. Cir. 1998)).

The U.S. Patent and Trademark Office has followed the guidance set out in the State Street Bank decision. In fact, U.S. Patent and Trademark Office has published a set of guidelines to help practitioners and the public understand how software may be claimed and described to avoid the natural law prohibition.

As a result, computer software may be patented. Of course, the other

statutory requirements for a patent must be met. Additionally, a software patent application should clearly set out the practical, tangible, and concrete results that the software provides. The patentability of software borders on the issue of patentability for business methods.

BUSINESS METHOD PATENTS^

As was indicated in the section on Computer Law below, many of the issues the courts have addressed in recent years regarding computer-related patents have also affected patents related to business methods. The Patent and Trademark Office has historically rejected all applications for patents on business methods and processes. Recently however, the Federal Circuit announced, "since the 1952 Patent Act, business methods have been, and should have been, subject to the same legal requirements for patentability as applied to any other process or method." State Street Bank & Trust Co. v. Signature Financial Group, 149 F.3d 1368 at 1375, 47 U.S.P.Q.2d 1596 at 1602 (Fed. Cir. 1998). The State Street Bank decision has profoundly affected intellectual property law and the business community, especially e-business. This section will describe how the recent court decisions and Patent and Trademark Office decisions affect those considering business method patents.

In State Street Bank, the court significantly broadened the patentability of computer software and business methods. The court retained the principle that laws of nature, natural phenomena, and abstract ideas are not patentable, but it also established the law that software is patentable if it provides useful, concrete, and tangible results. The court also stated that the business method patents should be subject to the same rules and restrictions as all other patents. The most common applica-tion of the business method patent is in combination with computer related patents and e-commerce. This trend is present because e-com-merce is one of the newest forms of doing business; hence, many novel methods relate to e-commerce.

Business method patents, however, are not limited to those methods involving a computerized process. The Patent and Trademark Office has said that "[c]laims should not be categorized as methods of doing business. Instead, such claims should be treated like any other process claims...." (See MPEP ß2106.) This statement allows the issuance of business method patents for mechanical as well as computerized processes. Some examples of business method patents that have been allowed include Amazon.com Inc.’s one-click shopping method, and Priceline.com Inc.’s name-your-own-price shopping method. Other examples are directed toward a business’s internal operations such as computerized recording and reporting methods such as those litigated in State Street Bank & Trust Co. v. Signature Financial Group, 149 F.3d 1368, 47 U.S.P.Q.2d 1596 (Fed. Cir. 1998), and AT&T Corp. v. Excel Communications, Inc., 172 F.3d 1352 (Fed. Cir. 1999). Accord-ingly, in the years since State Street Bank, the Patent and Trademark Office has seen a rapid increase in the number of business method patent applications. There were 7,800 such applications filed in fiscal year 2000.

Though these changes seem promising to one wishing to patent a business method, more recent decisions by the Patent and Trademark Office may make it more difficult to obtain a business method pat-ent. Beginning in March 2000, the Patent and Trademark Office began requiring a more thorough review of business method patent applications. As part of what the office calls the "Business Methods Patent Initiative," patent examiners have broadened the scope of prior art searches and the office has provided specialized training to those examiners issuing business method patents. More significant than these changes is an internal policy that calls for an automatic second review of all issued business method patents. This means that after the primary examiner determines that a business method patent should issue, the application is automatically forwarded to a second examiner to re-examine the application prior to actual issuance.

State Street Bank opens the door to business method patents and allows companies to have proprietary rights in certain methods of doing business. Though State Street Bank broadened the range of subject matters that are patentable, it did not do away with the many other requirements for patentability such as novelty and non-obviousness. Not only are the many other limitations on the issuance of a patent still in place, but they were recently reinforced by the Patent and Trademark Office’s Business Methods Patent Initiative. The practical effect on the inventor is an even greater need to develop a company intellectual property policy if there is the potential of seeking a business method patent. In this field that is rapidly emerging and changing, a company contemplating a business method patent would be well advised to seek the advice of a licensed intellectual property attorney.

BIOTECHNOLOGY AS INTELLECTUAL PROPERTY^

The realm of patent law was turned on its head in 1980 by the decision of the U.S. Supreme Court in Diamond v. Chakrabarty, which threw the doors of the United States Patent and Trademark Office wide open to "anything under the sun . . . made by man." 447 U.S. 303 (1980). In that case, a genetically-engineered microbe capable of breaking down components of crude oil was ushered into the realm of patentable inventions.

The U.S. Patent and Trademark Office ("USPTO") included its response to Chakrabarty in its Manual of Patent Examining Procedure. In this manual, the USPTO notes that the Court "did not limit its decision to genetically engineered living organisms[,] . . . enunciated a very broad interpretation of ‘manufacture’ and ‘composition of mat-ter’[,] . . . [and] set forth several tests for weighing whether patentable subject matter under 35 U.S.C. 101 is present." MPEP, 2100-3. In summary, the case held that "a nonnaturally occurring manufacture or composition of matter" would be considered patentable subject matter. "Manufacture" was defined in Chakrabarty to be "[T]he production of articles for use from raw materials prepared by giving to these materials new forms, qualities, properties, or combinations whether by hand labor or by machinery." MPEP 2100-4. This definition, by placing its emphasis on whether an invention is manmade in form or quality instead of whether it is living or derived from a product of nature, made many biotechnological advances patentable, as shown in subsequent years.

In the wake of the Diamond decision, many inventors’ creations, though previously excluded from the promise of patent protection, have been welcomed by the Patent and Trademark Office. Entire industries were forced to reevaluate their patent strategies and research efforts. First, the Board of Patent Appeals and Interferences determined that plant or animal material may be patentable subject matter under Section 101. Later, the Board found that despite separate protections for plants, plant subject matter may be protected by a utility patent. See Ex parte Hibberd, 227 USPQ 443 (Bd. Pat. App. & Inter. 1985). Later, the Board determined that a polyploid Pacific coast oyster could be patentable subject matter. See Ex parte Allen, 2 USPQ2d 1425 (Bd. Pat. App. & Inter. 1987). After this, the Commissioner of Patents and Trademarks issued a notice which stated that nonnaturally occurring, nonhuman multicellular living organisms, including animals, are patentable subject matter, unless "the broadest reasonable interpretation of the claimed invention as a whole encompasses a human being." MPEP 2100-4.

Since that time, broad new classes of patentable subject matter, including human genes, animal and plant genes, novel nucleotide and oligonucleotide molecules, transgenic animals, transgenic plants, and genetic therapies have been the subjects of patent applications. Patents granted from such applications have helped to render research and development into many biotechnology applications profitable, thus supporting research and the growth of new industries bound to bring about bold changes in the future of mankind.

This revolution in patents has contributed in part to a "Genetic Revolu-tion" that has fundamentally changed the way that people the world over perceive themselves and their surroundings. Young and old regard genetic research with hope for greater understanding of the diseases or limitations that trouble them.

Entire industries have been built around the hope of commercializing the data derived from the Human Genome Project and other genetic research. In the wake of the Project and the research conducted by the many private labs competing with it many genome-related patents have been issued to various parties. Consequently, an intricate web of patents now cover vast stretches of the genome. These patents are becoming a new financial and legal obstacle to researchers accustomed to a wide-open playing field. Researchers now find themselves fettered by license fees for the use of genetic material, yet encouraged by the power of the technology put within their grasp. This dilemma reflects the complexity and power of the intellectual property questions that must be dealt with in today’s business and research environment.

As a result of this and other problems, it has become increasingly important for researchers, laboratories, institutions, and businesses to better understand and navigate the waters of intellectual property protection, both as a means for generating an income stream, and for the purpose of avoiding the huge potential liability that can arise from an infringement suit.

Further, since the results of genetic research and development may take many years to proceed through established governmental approval procedures before a useful product can even begin generating income,

biotechnology companies are heavily reliant on their patent portfolios to attract investors and fund research. It is very important for such companies to have a carefully-crafted patent strategy to maximize the scope and duration of protection awarded to their intellectual property. In fields such as pharmaceuticals, for example, several days of patent protection can be worth millions of dollars.

Austin Rapp & Hardman has been an active participant in these emerging patent arenas for several years. As such, Austin Rapp & Hardman brings to bear a unique level of experience and ability in obtaining and enforcing biotechnology-related patents.

2.7 patent protection strategies^

MINIMAL APPROACH^

• Do Not Disclose the Invention -- Initially it is important to remem-ber the basic requirements of patentability. Perhaps the most com-mon manner in which inventors lose their patent rights is by placing those inventions in the public domain through their own actions. In the haste of getting a product to market or in order to receive credit for a significant advancement, an inventor may unintentionally lose valuable rights. Accordingly, do not publish, present information at a conference, reveal your new product at a trade show, or place a new product on sale without first considering the patent implications and consulting with your patent attorney. To do so could be disastrous to the long term profitability of the invention.

• Document the Development of the Invention -- Carefully document the development of your invention so that the dates of conception and reduction to practice of the invention can be proven. In the United States the first inventor is entitled to the patent. Accordingly, if more than one inventor files for patent protection on a single invention, evidence of the date of invention will become critical. Documenting development will also help in proving that diligence was used in developing the invention. Showing diligence can be important in determining ownership of the invention. The documentation need not have any particular form, but it should be corroborated. Hence, it is advisable to have some trustworthy person who understands the technology witness the stages of development and sign and date any written description or drawings. This witness should be under a contractual obligation not to disclose what is witnessed. It is an "old wives tale" that inventors can adequately protect their inventions by mailing themselves a copy of a description of the invention by certified mail. That practice does not provide an inventor with a corroborating witness.

• Conduct a Patent Search - In most instances, it is recommended that a patentability search be conducted prior to drafting a patent application. A search essentially screens the existing patents in the technology areas related to your invention and provides you with copies of several patents found to be pertinent to the invention. Generally the search is conducted by a professional search firm located on site at the United States Patent and Trademark Office in Washington, D.C. It is also possible to screen the technology area via computer databases and Patent Office reference libraries, often found at most major universities; however, these searching techniques have limitations. While cost constraints will usually dictate that the search not be totally comprehensive, the search will provide a good indication of the nature of inventions that have already been patented in the field of interest. A review of the search results arms the inventor with information needed to more accurately predict the prospects for success in obtaining a patent and the possible scope of patent coverage available.

• Evaluate the Commercial Importance of the Invention -- Patents are a commercial asset much like manufacturing facilities, materials, and equipment. Therefore, it is important to make an objective economic evaluation of the value of patent protection, as well as the associated costs. A good time to make a preliminary assessment of economic value is after obtaining the results of the search.

In making this evaluation it is worthwhile to determine the scope of likely patent coverage in view of the patents discovered in the search. If there is nothing "close" to the invention, its commercial value is likely to be higher than if there are numerous similar patents on existing inventions.

• Prepare a Comprehensive Patent Application -- Once the decision is made to file for patent protection, it is important that the best possible application be prepared. The patent application is a detailed document which describes the important aspects of your invention and the manner in which the invention operates. The United States patent statute requires that the patent application contain a written description of the invention in such "clear, concise, and exact terms" as to enable one skilled in the art to make and use the invention. In most cases (other than chemical composition applications) the application will include detailed technical drawings of the invention, in addition to the written description.

Patent applications are also required to contain a description of the "best mode" for practicing the invention known to the inventor at the time the application is filed. This prevents an inventor from concealing the best aspects of the invention, while still seeking patent protection. Therefore, make certain that the best mode is completely disclosed in the application.

To assist your patent attorney in preparing the patent application, it is critical to assemble detailed information related to the invention. Your attorney will want to review drawings and specifications of the invention which you have developed. Any important criteria used to decide how best to practice the invention should be provided to your attorney.

You should also submit exemplary data that you may have collected in testing or practicing your invention. Additionally, you should identify materials used in the invention and commercial sources for those materials. By providing all of this material, preparation of the application will be expedited and costs will be minimized.

MODEST APPROACH^

• Adhere to the precautions and advice listed under the Minimal Approach above.

• R&D Lab Books -- A good practice is to have technical employees keep accurate laboratory notebooks or similar records. These records should be periodically signed and dated by the witnesses within your organization who can later testify concerning content of the records. Such notebooks and records can prove important in showing that an inventor was the first to invent a particular technology. These records may also be helpful in dealing with ownership issues.

• Employment/Consultant Agreements -- It is advisable to have your employees enter into employment agreements that govern the manner in which inventions are treated internally and how ownership in those inventions is held. An agreement is critical if you are working with an outside consultant who may contribute to your proprietary technology.

Often there are laws dealing specifically with invention agreements between a company and its employees or consultants. Legal as-sistance with the preparation of invention agreements is advisable.

• Company Intellectual Property Policy -- As your company grows it will be important to develop an integrated intellectual property policy. At first, the policy may be simple and merely identify your technology and some of your goals for the technology. The policy may grow with the company to become much more sophisticated in marshalling your intellectual property and handling invention disclosures, economic feasibility, and technology trends. At mini-mum, however, the policy should be implemented to identify those inventions being developed by your organization so you can maintain ownership in those inventions. In addition, the policy might address how the company deals with unsolicited idea submissions from employees or from outside third-party inventors. With a policy in place, intellectual property issues are dealt with much more easily.

• Visitor Procedures - Limiting unauthorized access to your facilities aids in maintaining your trade secret rights and in assuring that your patent rights are not lost or misappropriated. One simple, yet effective, step is to institute sign-in procedures for guests. Guests should be required to sign in each time they visit. Such guests should also wear "visitor" identification, such as a badge, and be escorted through your facility so that they can easily be identified as visitors. The sign-in sheet is a convenient place in which to spell out the terms under which admittance to your facilities is granted and that all

information gained during their visit is confidential and proprietary. An additional precaution that can be taken at modest cost is to house particularly sensitive information in a locked cabinet or room with access limited to persons having a need to use the information. Such persons may be required to sign a list to check out or return such information, even if they are trusted employees.

AGGRESSIVE APPROACH^

• Technology Watch -- As your company becomes ingrained in a technological area, it becomes increasingly important to monitor either the technological developments of a competitor or the develop-ments within the technological area. There are watch services that can assist in such monitoring activities. For a fee, a company can be apprised of every significant development being patented or published by others.

• Licensing Program -- It is not necessary that a company develop all of its own technology. Conversely, a company may develop more technology than it is capable of effectively using. As a result, it may be advantageous for a company to adopt an aggressive licensing program to obtain the use of technology or to generate revenue by licensing their technology to someone who can exploit it.

• Foreign Patent Policy -- Although there are considerations regarding foreign patents that can be addressed for little or no cost, filing for foreign patent protection can be quite expensive. Nevertheless, if your company serves significant foreign markets, foreign patent protection may be important. A carefully crafted policy could prove to be valuable in minimizing foreign patent costs while maximizing essential foreign protection.

• Enforcement Program -- The existence of a patent may not be suf-ficient to deter infringers. A patent owner can obtain money damages and an injunction against infringers through litigation. Unfortu-nately, enforcement through litigation is expensive, time consuming, and distracting. However, enforcement does not always require litigation. There are various techniques to enforce rights without incurring litigation expenses. A program for enforcing intellectual property rights can be adopted that can be tailored to a company’s needs and leave litigation as a last resort.

2.8 summary^

Patent protection is growing in importance in the commercial marketplace. In order to effectively compete in the world economy, patent protection is often essential. It provides growing and established companies an opportunity to develop and market their inventions without unbridled competition. Accordingly, patents are a critical corporate asset.