The convergence of technologies has made landscape analysis more onerous and complicated, according to in-house counsel.
Sources explain that businesses in most sectors are increasingly looking to create tech-enabled devices by partnering with non-traditional developers, or investing in technologies such as artificial intelligence or telecommunications solutions.
These partnerships and projects have introduced more competitors and technology areas into numerous industries, and businesses now need to keep tabs on these as part of their landscape analysis to mitigate risk, benchmark the business, identify opportunities and gain insight into competitor activity.
In-house sources say that the complexities introduced by the entrance of new competitors and technologies call for more in-depth and proactive landscape analyses.
“When you combine two industries, searching for competitive intelligence becomes more complicated because not only are you searching for your business domain expertise but also [for that in] your tech areas,” explains the vice-president of IP at a technology firm.
He points out that as businesses grow and mash together domains more aggressively, and in larger quantities, the issue will likely grow exponentially.
The chief counsel at a global medical device company adds that the growing number of tech partnerships and projects has pushed his business outside more familiar analysis areas.
“We have a good feel for what our traditional landscape looks like and pushing outside of that requires more resources and that is when you rely on external firms and the expertise they hold,” he says.
The IP manager at an automotive start-up adds that his firm must also monitor companies that are not its direct competitors because of the convergence of technologies.
“You cannot just look at aeroplane or helicopter seats being put together with 3D printing, and that makes it difficult to identify the relevant patents,” he says.
“We do not just look at competitors, but companies developing technologies that we have to incorporate as well,” he says, adding that almost every company seems to be developing certain technologies that his firm is interested in.
The IP manager at an aerospace company points out that his company’s new focus on 3D printing has also introduced complications into its competitor analysis because of how widely the technology is being developed.
Companies may need to implement more in-depth and proactive analysis strategies and invest in automation technologies if they want to navigate their progressively rocky landscapes better.
Proactive analysis tips
Sources point out that competitive analysis requirements will vary enormously between businesses, but have identified certain universal considerations.
Jarred Twigg, IP manager at Breville, says that the market landscape has broadened because of the development of the internet of things and connected kitchen appliances, but points out that it may be a mistake to regard all new entrants as a competitor.
“In a number of those converging tech areas, you may find that certain new players with access to large revenue streams are better served by collaboration than by isolation to extend the reach of their own tech,” said Twigg. He adds that a company in the digital space of back-of-house infrastructures is not likely to regard Breville as a competitor or lawsuit target, but rather as a potential partner to progressively provide information assets.
The possibility of some form of collaboration or agreement should be considered by most companies as part of an effective landscape analysis.
Businesses must also better understand how competitors are working with new partners and technologies. The medical device chief counsel says that it is now more important to explore what others are doing in the business’s space beyond standard freedom-to-operate searches.
“You should look at what your traditional competitors are doing in areas such as automation or connectivity, because there may be some things they are doing that you did not anticipate them doing before,” he says.
He adds that if competitors are accelerating their work with various technologies and partners, their patent activity will similarly escalate and the business can create a more informed strategy in order to get ahead.
“It is better to get ahead of that activity instead of waiting to do freedom-to-operate work on the product they end up launching,” he says.
Twigg agrees that it is important to be proactive with standard competitor analyses, but adds that a more important concern for his company is knowing which competitors are more efficient, or effective, at strategically identifying and securing powerful partners to leverage during the collaborative period.
The real risk to any company in the age of tech convergence, he says, comes from direct competitors who strategically leverage the resources of powerful partners with whom they are collaborating.
“It is not the converging party that worries us but rather how its rights could be used against use by traditional and more contentious competitors,” he explains.
The medical device chief counsel adds that – in the interest of not antagonising new entrants – a more proactive analysis strategy can help the company to not accidentally infringe on any patent portfolios that it previously might not have considered a risk.
“In the past we had standard products, but now you might have a product with a chip in it that connects in a hospital and that may beam things into the cloud. There are so many different elements to the product and you do not know who might come after you,” he says.
He adds that the Apples and Googles of the world are unlikely to come after a medical device company for a making a traditional product with some connectivity or unique technological feature. But when that company pushes into more familiar areas to the tech giants, such as mobile applications to help patients manage their health, they may be more inclined to pursue their rights.
Tech and focus
The challenge for businesses looking to start a more proactive analysis in an increasingly large and complex competitive landscape is resources. The aerospace IP manager points out that his company and others like it have small patent departments that cannot possibly cover all the ground needed.
He says that one way his company has tried to interpret its landscape more successfully is by developing analysis focal points.
“We have to make some choices about what we look at. We cannot possibly look at every seat being developed by 3D printing or at every company developing 3D printing.” He adds that the task becomes a matter of identifying key companies or portfolios for the business to monitor.
The aerospace IP manager and medical device chief counsel agree that another option is to make more use of external counsel if there are other focal points that either the business does not have the resources or expertise to cover, but should be monitored.
Sources point out that technology might also be the answer to a challenge largely created by tech projects and partnerships. The vice president of IP at a technology firm points out that businesses may want to consider investing in artificial intelligence and other automation technologies.
“Automating prior art searches or augmenting that task can support competitive intelligence,” he says. “Depending on what the business is trying to achieve, it may help to create a high level insight into increasingly complex landscapes.”
Landscape analysis is becoming more complicated as businesses increasingly invest in technology and develop new partnerships. The landscape may be rockier but a more in-depth approach to competitive analysis, done in a more focused way and aided by technology and outsourced resources, will help chart the right path.
