“The US patent system is mostly broken.”
If that diagnosis is wrong, I would venture to say that the current US patent system certainly is dysfunctional; erratic; unpredictable; unreliable. It can cost a King’s Ransom to even try to play. And, forget about trying to figure out if you’ll win (and what that might cost). For the curious, there’s an eye-opening post over on the industry-respected blog, ipwatchdog.com, that you might want to read: http://www.ipwatchdog.com/2017/10/30/ptab-patent-trolls-bad-patents-wakeup-aia-apologists/
IMHO, the system won’t self-correct anytime soon (if ever). The days of efficiently-achieved, presumptive, broadly-scoped exclusivity offered by the patent system are largely over, at least as viewed through today’s lens. Perhaps the pendulum will swing, but the return to sanity and predictability likely will take years*.
Then, what does one do today to protect one’s widgets**, investments, and market share? There is no single answer to this significant and perplexing question (and, certainly, the following is not to be taken by anyone as legal advice without first consulting with your own attorney based upon your own particular facts and circumstances. And, yes, that includes discussing the pros-and-cons of pursuing and building a patent position. Apply individualized, informed decision-making, folks.).
Let’s take a shot at a possible—albeit, a somewhat incomplete and perhaps unsatisfactory—answer for some businesses:
Wisely choose and legally vet “Your Brand.” Don’t shortcut this step. Iterate if necessary. Register “Your Brand.” Then, brand everything. “Your Brand” is everything. Launch first*** and launch large. Fight to build and protect “Your Brand.” “Your Brand” is what sells. “Your Brand” is what defines your market position.
Everyone else sells widgets. “Your Brand” is what sells your widgets.
Over-simplified? Resoundingly, yes. A starting point worth considering? For sure.
* Remember, the life of a fully maintained U.S. utility patent currently is 20 years from the date of first filing (note that there are caveats and exceptions to this rule); the life of a newly filed U.S. design patent currently is 15 years from the date of issuance (again, with caveats and exceptions). For recently and newly issued patents, this gives me hope that there will be enough useful, enforceable life remaining to navigate these patents through the “pendulum period” discussed above. We’ll see. In the meantime, please consider calling or writing your Congress persons and telling them how this broken U.S. patent system is affecting you and your business interests.
** If appropriate, substitute “goods,” “services,” or “technologies” in lieu of “widgets.”
*** By this, I mean, launch during that magical, mystical time that occurs only after filing that patent application you are going to talk to your attorney about, but still before your competition launches. Yes, it remains a race to protect and a race to market.