Small Changes and Big Realities

Isn’t it true that competitors need only make a small change and get around a patent? If so, then why should I get a patent? This is a common refrain, mistaken both in its premise, and in pragmatic reality. For patents, a small change is neither here nor there. Is the competitor’s product within the terms of any claim in the patent? That is the question. If a small change is within the terms or, in many cases, is the equivalent of the terms, then a case for patent infringement may exist.

That is the analysis on the merits. But the real analysis is on the economics.

Patent litigation is unbelievably expensive. More so for defendants, in most cases, then plaintiffs (for reasons that will be the subject of other blog entries). A defendant receiving a cease and desist letter faces an economic wake-up call. When the defendant takes it to the patent lawyer, the lawyer often will require a seemingly gargantuan retainer fee and monthly litigation budget. For most small, and even medium sized, defendants, making a patent infringement defense is not practical, and in many cases not possible. A small change (or even not so small) to a product can still nevertheless come within the terms of a patent claim, allowing a patent holder to terrify, in many cases into submission, a defendant who cannot meet the sticker price for a defense. The threat or even reality of a patent infringement lawsuit can be effective at keeping the competition in line. But, the patent owner has to be willing to enforce it.