Once upon a time there was a University Entrepreneurship Center which had three little pigs, each with promising business ventures in the works. When the pigs were old enough, they went out into the world to seek their fortunes.
The first little pig was very naïve and lazy. He wanted to pursue his idea at the expense of protecting his business and didn’t pursue any intellectual property protections or conduct any patent clearance searches, effectively building his business out of straw. The second little pig worked a little bit harder, filing a few narrow patent applications on her basic concept, creating a wall of sticks around her business, but didn’t take any additional steps to ensure that her business pathway was clear.
The third little pig worked hard, developing and protecting his intellectual property with a thicket of patent applications, clearance searches to ensure that his principal concepts were not infringing the intellectual property of others, and a close relationship with his patent attorney to counsel him in the event of any threats or misfortune. With this, he created a strong brick house around his future.
Eventually, a competitor wolf with a portfolio of older patents of questionable scope came across the three little pigs. The wolf saw the first pig with the straw business and thought the pig would make a mighty fine meal and the wolf’s mouth began to water. So, he knocked on the door and said, “Little pig, little pig, let me in!”
The first little pig answered, “Not by the hairs on my chinny chin chin!”
The wolf showed his patent portfolio and said, “Then I’ll huff, and I’ll puff, and I’ll blow your house in!”
The first little pig, having nothing with which to protect his business but his straw house, waived the white flag and surrendered, shutting down his business, and went to work for the second little pig.
The wolf continued down the lane and he passed by the second pig’s business, protected by her wall of sticks. He saw the sticks and he smelled the pig inside, and his mouth began to water as he thought about the fine dinner she would make. So, the wolf knocked on the door and said, “Little pig, little pig, let me in!”
The second little pig answered, “Not by the hairs of my chinny chin chin!”
The wolf showed his patent portfolio and said, “Then I’ll huff, and I’ll puff, and I’ll blow your house in!” He filed a patent infringement lawsuit, threatening ruin on the second little pig’s business, and the second little pig had nothing in her arsenal to fight back. She too eventually conceded defeat and agreed to pay a license rather than bankrupt her business fighting against the wolf and his patent portfolio.
The wolf then came across the third pig in his house made of bricks. The third little pig was very frightened, as he knew the wolf was very confident, having defeated the other little pigs, and was eying the third little pig’s business greedily. With two wins under his belt, the wolf was looking for a major victory to fill his coffers. The wolf knocked on the door and said, “Little pig, little pig, let me in!” The third little pig answered, “Not by the hair of my chinny chin chin!” So, the wolf showed his teeth and said, “Then I’ll huff, and I’ll puff, and I’ll blow your house in!”
Well, he huffed, and he puffed. He puffed and he huffed. But the third little pig counterclaimed with infringement claims on his own patents, invalidity claims based on prior art searches, and an inter partes review petition that would stall the wolf’s infringement claims while validity was determined at the PTO. The wolf continued to huff and puff, but eventually he was so out of breath that he couldn’t huff, and he couldn’t puff anymore. So he stopped to rest and sought to end the dispute.
But this was too late. The PTO had granted the IPR petition and would proceed with or without the third little pig. The wolf danced about with rage and swore he would come down the chimney and eat up the little pig for his supper. But while he was climbing on to the roof the little pig made up a blazing fire and put on a big pot full of water to boil while he prepared his IPR brief. Then, just as the wolf was coming down the chimney, the third little pig (with the help of the PTO) pulled off the lid, and “plop!” in fell the wolf and his patents into the scalding water. The little pig put the lid on the pot, boiled the wolf up, and ate him and his patents for supper.
The moral of this story – a business’ intellectual property is often its most valuable and vital component, and businesses should protect this asset to the fullest extent possible, lest some competing wolf blow their business down.
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