Learning from Walker Digital's Practices
At the more mundane level, Walker has, of necessity, figured out some useful, innovative approaches to working with patents, particularly business method patents. Any company interested in using patents to protect its assets can learn from Walker's example. Here are the key points:
Invent starting from value rather than technology. This typically means focusing on a business problem that, when solved, opens up new opportunities for creating value. This advice is most important for business method patents.
Notarize and log everything as you go.
Understand that business methods can be patented. Even if, for some reason, you choose not to pursue a business method patent, understand that some other company might do so. This means that keeping careful track of development work, complete with dates and notarization, is important even if you do not intend to seek patents: it provides you with a defense against patents by others.
Recognize that the return that you can receive for your investment in an invention is a function both of its value to those who use it and your ability to protect it from copying. Patents are, of course, an excellent way to address the second concern.
Because protectability is so important, you should take the search for prior art very seriously. There may not be much point in developing an invention that you cannot own (and perhaps cannot use without infringing on someone else's patent).
Patent attorneys and inventors should work together from the outset of creating an invention. Don't do the work and then hand it to the legal department.
Consider use of a provisional patent application if it looks like developing the full application might take awhile.
Keep extending the value of your patents. View the patent application as a way point in a longer journey rather than an end point.
Consider use of continuation-in-part applications as a way to formalize and recognize your continuing efforts to refine and extend your inventions.
Repeat: start from the value, not from technology.
As always, the usual disclaimer applies: this is not legal advice. If you are developing patents you should be working as closely as possible with good patent attorneys.
Walker Digital is a wonderful example of a company that is making the most of current patent policy as it has emerged through the courts and in the hands of the PTO. Congress, of course, can change patent policy. In the next chapter I look at what Congress has been doing and at what it is likely to do next.