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When developing a patent strategy for a client with an emergingtechnology, I look at three specific layers of coverage from both thetechnology and business aspects of a client. The first layer describes the basic underpinnings of the new technologyand usually covers the first embodiments of the technology. The secondlayer is the ‘tool’ layer, covering the tools required to use thetechnology, and the third layer is the ‘application’ layer, detailingnew uses and application of the technology. Layer 1 patents cover the nuts and bolts of the invention, with a focuson the initial embodiments. Patents in this layer focus on the basictechnology that makes up the first products in this field. The first fewpatents of this sort will cover the actual products sold by the client.A Layer 1 portfolio will cover all the underlying technology that isbehind the basic product. In a hypothetical case of an early airplane company, the Layer 1 patentscover the components that make up an airplane: the structural body thatcarries passengers and cargo, an aerodynamic lift device (wing), and apower plant. The Layer 1 patents are usually found by talking to the technologydevelopers in the research and development section of a company. A Layer 2 patent covers the tools required to use the technology. Thetools may be the follow on products that take advantage of certainfeatures of the basic product. In other cases, the Layer 2 patents maycover technology that is fundamentally enabled by the company’s basicproduct. In our hypothetical example of an airplane company, enabled technologiesor “tools” would include airports, air traffic control systems,avionics, baggage handling equipment, and the like. The Layer 2 coverage adds a solid second net to protect the coreinvention. If the client’s products are successful, competitors maydesign around the Layer 1 patents. The Layer 2 patents can be writtenwith this possibility in mind, affording a second set of wallsprotecting the client’s IP assets. In many cases, the Layer 2 patents come from a combination of thebusiness and technical visionaries. The key is to find where the marketmay emerge, then determine the technologies that are required to makethe client’s products fill that market. Often, the Layer 2 patents aredeveloped as the product emerges in the market and the client startssolving problems that are hindering the sales of the core product. The third layer of coverage is the application layer. These patentscover the very large applications of the technology. The visionaryentrepreneur or business leader is generally the best source for Layer 3patents. Taking our airplane company example, a Layer 3 application may be alarge passenger airline or overnight package delivery service. Layer 3 patents are found when exploring what may happen if the productcost was 1 percent of the current cost, the cost of a key component was100 times more expensive, an incredibly efficient distribution systemexisted and the product was wildly successful, or any other extremecase. The point is to try to envision what the client’s technologycould enable if it were extremely successful. The Layer 3 concepts may be largely speculative and may take a long timefor the market to develop to the point where the ideas may come true.These ideas may need to be documented and held in very strict confidencefor a while before filing a patent or else the patents may expire longbefore the markets mature and the patent is worth something. The three-layer concept is just one tool that helps the patentpractitioner and client look at the client’s business and map a thoroughIP strategy. When each layer is considered separately andindependently, distinctly different views of the client’s business andpatentable inventions may emerge.

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