Book 2011 Chapter 6
Corbel, P. and Raytcheva, S. « Le brevet comme outil de gestion du risque de subir une attaque en contrefaçon » in P. Corbel and C. Le Bas, Les nouvelles fonctions du brevet – Approches économiques et managériales, Economica, December 2011, pp. 101-123
Introduction:
The purpose of this chapter is to explore the purely defensive roles of patents. The purpose of filing patents may in fact be to limit the risks of being sued for infringement. We have been able to analyse the reasons for this by cross-referencing an analysis grid derived from risk management with the views of practitioners on the role of patents. Holding patents reduces both the magnitude of losses and the probability of an infringement attack through three patent functions: negotiation, deterrence, "mine clearance" and associated skills. It also modifies the various factors influencing the perception of legal risks at the level of both the target and the potential attacker.
Even though it is based more on a study of professionals discourse than on objective facts and preliminary quantitative research, this work contributes to extending the reasoning of risk management to a theme hitherto neglected by its specialists. Above all, it enables us to deepen our knowledge of some of the roles played by patents, which recent specialist literature has taken from their original role as an instrument for combating technological imitation to become a genuine strategic management tool. The deterrent effect is one of those that has been little studied to date. Finally, this analysis has potential implications for the management of a patent portfolio. Companies for which reducing this risk is an important element of their IP strategy adopt specific behaviours, in particular the filing of a large number of patents, which our analysis helps to explain.