How does this apply to Mr. Harman’s fluid dynamics patents? It appears from the New York Times article that Mr. Harman is not an industrial engineer; rather, he is described as an “Australian naturalist”. As such, he is likely not accomplished in the specifics of the design of the machines and processes in which his patented and patent pending technology will be used. It is possible and perhaps likely that an accomplished industrial designer will be able to design patentable inventions that utilize his fluid dynamics technology. As with the hair loss drug example, the inventor of the industrial applications incorporating Mr. Harman’s technology will not be able to use the technology without infringing the broad patent rights owned by Mr. Harman. However, Mr. Harman’s ability to freely license his technology could be restricted by strategically designed blocking patents. And, if the blocking patent rights are to commercially lucrative applications of his fluid dynamics technology, Mr. Harman and his investors may be significantly limited in their ability to obtain payback from this revolutionary technology.
Mr. Harman and his investors would be well-served by developing and actively managing a follow-on patent strategy that is directed toward anticipating and preventing third party blocking patents. This strategy can involve the drafting and filing of new patent applications, but this can be very expensive in the long run. Alternative strategies are also available. For example, Mr. Harman can publicize as many improvements as possible and monitor third party patent filings to ensure that the Patent Office is aware of these publications and does not allow any patents to be granted on this published information. Other options are possible, depending on the circumstances, but this is best addressed by Mr. Harman, his investors and their attorneys.
The take home from this discussion should be that patent strategy does not stop with the issuance of patents, regardless of how broad the patent rights may be. Like a business strategy, a patent strategy is an ongoing process. If your company develops innovative technology that provides a market benefit that will be sought out by consumers, others will want a piece of the action. A patent, even a broad one, may not be enough to protect your company from competition if the stakes are high enough. Mr. Harman’s and his investors’ payback may be dependent on their anticipation of the patenting actions of others.