Craig Opperman knows rote patent protection is no longer adequate to protect innovation in today’s corporate world. His team’s mission at Lam Research is to design and build business-relevant corporate assets, rather than merely focusing on a by-the-numbers obtaining of legal rights unconnected to the business. It’s a core undertaking for the Fortune 500 semiconductor equipment manufacturer, and Opperman is applying his proactive approach as vice president and chief intellectual property officer to ensure protection for the global supplier’s cutting-edge semiconductor wafer-processing technologies.
A native of South Africa, Opperman moved to Silicon Valley in 1991. With guidance from great mentors, he gained valuable experience working at some of the world’s leading technology law firms and in-house, first in the US, then in Europe. He returned to Silicon Valley to join Lam in 2017 and is now applying what he learned to protect IP and manage risk at Lam.
To do so correctly requires a crucial mind-set change within the legal department, according to Opperman. Most companies look to file lots of patents hoping some will be useful for protecting their products from copycats and other infringers; he calls it the “spray and pray” model. Opperman prefers a focused asset-based model, where IP assets’ quality, value, and relevance—not their number—are the primary drivers. Modern Counsel spoke with him about why this asset-centric approach makes more sense for Lam.
You’ve said that patent protection is like building houses. How so?
Think of a patent as a house. The walls define the patented exclusionary zone. Now, in the housing industry, if you are going to develop a tract of land, the first decision to make is whether you are going to plop in lots of cheap houses without much architectural design-input—call them tract houses—or, alternatively, build fewer well-positioned and well-designed houses. That’s the difference between a volume-based patent approach—focused on getting houses built but not necessarily strategically positioned—and an asset-based philosophy, where you need to ask a bunch of questions beyond what clever invention must be protected and have a team with an expanded toolbox of skills.
What skills do you believe are essential?
You have to have people who think like designers and architects. Does this house face in the right direction? Does it have all the right rooms? Is it located correctly? My personal philosophy is that focusing on lots of tract houses is a disservice. Having lots of patents costs a lot in maintenance fees. Think of them as property taxes. Volume patenting drives huge maintenance costs. With fewer and better-positioned patents, you pay more up front, but your portfolio is much more relevant and your back-end costs are much lower.
What do you mean by “relevant”?
Relevant to innovations actually in your products. The standard way of getting a patent is to protect an invention. But, if you don’t protect how that invention makes its way into or evolves in the product, the result is a patent-product misalignment. You have a house that doesn’t surround or even put a roof over the invention.
The tech industry has created tens of thousands of such misaligned patents. It’s a result of the patenting process. Typically, it takes a few years after filing for a patent application to be examined. By then, the inventors are on to their fourth, fifth, or more project and aren’t sure whether or in what form their invention has made it into a product. So, when the patent office inevitably rejects the first version of the patent application, the patent attorney and inventor respond with amendments to overcome examiner arguments, often without checking on relevance. In effect, they change the house plans without thinking about positioning.
The asset-based approach is entirely different. At every step of the patenting process, the questions become “Is this valuable?” and “Is this relevant?”
What different skill sets are required for this model of asset protection?
The tract-house model is a commodity model. Price per product and numbers of patents are the primary drivers. In contrast, quality and relevance drive the asset model. In a commodity business, many people do the same task over and over. Efficiency at repetitive tasks is valued. But, to do what we are doing requires much broader skills. Team members have to be creative. They must understand our technology in the context of our business and thus understand the business relevance of our IP. They must interact more with inventors and also with business people. It is easy for tech people to geek out with other tech people about technology. Good patent attorneys love to do that. But, talking about business relevance is difficult. The team needs people with broad communication skills, people with vision and design ability, like architects.
How do you get your team on board with this model?
Our emphasis is business, technology, and law—in that order. Business first. Our challenge—and I must say, the Lam team is really good at this—is how to get everyone to focus on the asset’s value to the business rather than the technology. That takes continually reminding the team, the managers, and engineers that we are here not just to protect an invention but to protect an innovation as it is deployed in the marketplace.
We merely ask a single question: “Is this valuable or not?” That’s it. Don’t ask a legal question, only a business question: “What is valuable to the market? To the customers?” Sometimes it is clever stuff. Sometimes it is not so clever. When the focus changes from inventiveness to value, the whole way you approach patents changes. Every step of the way, we continually ask, “Is this house positioned to cover something valuable?”
