I love trivia games. Love them. I think I own every Trivial Pursuit version ever created. I love trivia so much I even co-wrote a book one time with some buddies on movie/TV trivia. Of course my wife will remind me that the word “trivial” is a more appropriate way to describe my penchant for facts but, that’s just her opinion.

The reason I bring up my love for useless data and information is I want to reposition my title as a query:

What’s the #1 thing that keeps marketers up at night?

A. Social media

B. Integration

C. Big Data

D. What to wear to the office holiday party

E. None of the above

The answer is E.

Sort of. I say “sort of” because I of course have no clue what keeps marketers up at night but I do know that one thing that is adding to their sleep deprivation is the topic of patents.

In case you didn’t notice over the past several years the amount of patent battles between some pretty big brands have been waged in the courts. Samsung vs. Apple. Google vs. Facebook. And on and on and on. The folks over at visual.ly put together this handy dandy graphicso you can keep score at home.

As you can see there is no shortage of litigation.

And rest assured marketers on all sides of these patent disputes watch intently and look for any competitive advantage they can capitalize on.

Paul Meadows, the former head of marketing at LG Electronics says marketers are always at the ready to strike “Marketers like nothing better than knowing there is a window of opportunity when an opponent is prevented from doing something,” he said. “That’s when you can invest to best advantage.”

Now imagine if you’re a marketer who’s in charge of a given brand or product but is unable to market said brand or product due to a patent dispute. You sit idly by as your competition takes full advantage of the situation.

And the practice of patent litigation is increasing every day Gregor Pryor, head of digital media at law firm Reed Smith: ‘Litigation has accelerated because technology has accelerated; there is real money involved,’ says Pryor. “‘If you can stop somebody using a particular file format or software, then it gives (your brand) a competitive advantage.”

But there is a caveat emptor of sorts when it comes to filing patent according to intellectual property attorney Nicholas Wells of the law firm Wells IP Law. Wells actually likens the process of getting a patent to that of owning a used car. “While patenting a fabulous new technology (or idea) is wise, the knee-jerk rush to the patent office may not always be a good investment,” says Wells adding “… that for many innovations that a small business might considering patenting, having that patent is probably no better than buying a used car.” He breaks it down into three reasons:

  1. Price. According to Wells you’ll more than likely overpay for it saying “attorneys who deal with patents will charge from around $5,000 to $35,000 (or more) to “shepherd your baby through the U.S. Patent and Trademark Office.”His advice is to find a reputable patent attorney.  Ask for a detailed cost estimate after disclosing the basics of your invention.  Then do a cost-benefit analysis before jumping in.
  2. You could get a lemon. Says Wells “If you wrote your own patent or hired an inexperienced patent attorney, the claims of your issued patent (which are the only part that you can enforce) may be so narrow or poorly written that your competitors can avoid your patent but still beat you in the market.  In that case, your patent is essentially worthless—a lemon.”His advice: Check the experience of your patent attorney in the field of your invention.  Ask him or her to evaluate risks that your patent might face based on how innovative it is.  Be prepared to invest some money to get that advice.  Then revise your cost-benefit analysis based the feedback you receive.
  3. Depreciation. Liking it to the value of a new car depreciating the minute you drive it off the lot Wells says “The value of your patent diminishes every year.  It has a 20-year life, measured from when you filedyour application.  Every January 1 brings you one year closer to the expiration date when everyone can use your idea for free.  Hope you’ve paid off your attorney’s bills by then.”His advice: Take a realistic look at how much benefit your company can derive from having a patent based on how much value that technology or method adds to your products or services.  Consider how quickly new technologies or clever competitors might be able to work around the innovation that you plan to patent.  Add those factors into your financial analysis.

Ok so if you’re a marketer who is in a position to either take advantage of a competitor’s patent pending issues, are you taking full advantage of it? Are you a marketer who is considering filing a patent on behalf of your client?

Will what you just read affect your next steps at all?

What role, if any, do patents play in your insomnia?

Sources: PR Weekvisual.ly