Patent practitioners routinely encounter portfolios containing multiple patents directed to substantially the same technology, sometimes within the same family, sometimes across jurisdictions, and sometimes from entirely different applicants. Yet despite similar subject matter, these patents can differ dramatically in commercial value, enforceability, and strategic usefulness.
This gap in value typically has little not do with the invention itself. More often, it reflects choices made during drafting, prosecution, and portfolio development that shape how a patent performs when tested by examiners, courts, competitors, or acquirers.
Let’s discuss several factors that frequently explain why patents covering the same inventions can end up with very different real-world values.
Claim Structure Matters More Than It Initially Appears
Two patents may recite overlapping technical features, yet differ substantially in claim architecture. Differences in independent claim framing, dependency structure, and fallback positions can significantly influence both prosecution outcomes and post-grant leverage.
Overly broad claims that are not well supported by the specification might make it through examination, but they also tend to be fragile. In contrast, claims that are deliberately crafted around a defensible inventive concept (one that the specification clearly supports) often provide stronger enforcement and licensing value, even if they appear narrower at first glance.
From a skilled practitioner’s perspective, the goal is rarely maximum breadth at all costs. Rather, real value lies in breadth that can actually be defended.
Stronger Specifications Age Better
While claims define the legal boundaries of a patent, the specification determines whether those boundaries can be sustained. Two patents covering the same invention may diverge significantly based on how effectively the specification explains:
- The technical problem being solved,
- why prior art approaches fell short,
- how the invention works across variations, and
- whether that inventor truly possessed the full scope later claimed.
Specifications drafted with an eye solely toward getting claims allowed often struggle under closer scrutiny, such as in litigation or due diligence settings. Those drafted with an eye toward enablement, written description, and claim construction tend to age better.
Experienced practitioners recognize that a technically persuasive specifications usually outperform one that merely checks the formal boxes.
Prosecution History Can Quietly Undermine a Patent
Even where two patents issue with similar claim language, their prosecution histories may tell very different stories. Amendments made to secure allowance, arguments distinguishing prior art, and characterizations of the invention can all influence how claims are later interpreted.
Statements made during prosecution might feel harmless or expedient but can later narrow the claim scope through prosecution history estoppel or disclaimer. In contrast, more disciplined approach helps preserve flexibility and enforcement options down the line.
In that sense, prosecution history is not simply a record of allowance; it is a lasting constraint on how a patent may be used.
Considering Validity Challenges Early Pays Off
Patents of higher strategic value often reflect early anticipation of potential validity challenges. These include:
- obviousness arguments based on predictable combinations,
- enablement concerns tied to functional claim language, and
- written description challenges where claim scope outpaces disclosure.
When the drafting record demonstrates that these risks were anticipated, the resulting patent is typically more resilient. Seasoned practitioners who treat drafting as the first step in risk management, rather than as a filing formality, tend to produce assets with greater long-term strength.
Business Alignment Influences Perceived Strength
Two patents covering the same invention may also differ in value depending on how well they align with the underlying business objectives. For example, a patent optimized for deterrence may differ structurally from one intended to support licensing, standards participation, or acquisition.
From an in-house or transactional perspective, patents are rarely evaluated in isolation. Rather, their value depends on how they fit within a broader portfolio, how clearly they relate to real products or services, and how easily their significance can be explained to non-technical stakeholders.
Patents drafted without this alignment may still be issued, but their practical utility can be limited.
Closing Thoughts
Patent value is not a direct measure of inventive brilliance. Two patents covering the same technology can diverge significantly based on drafting discipline, specification quality, prosecution strategy, and long-term positioning.
For practitioners, the takeaway is familiar but worth repeating: value is built, not granted. Early decisions (often before claims are finalized or office actions are received) frequently determine whether a patent becomes a strategic asset or merely a paper right.
At Schmeiser Olsen, we work with clients to develop patent strategies that recognize this reality, focusing on durable protection that serves both legal and business objectives over the life of the portfolio.
Looking to Protect Your Intellectual Property?
Please contact Arlen Olsen at Schmeiser, Olsen & Watts LLP at aolsen@iplawusa.com.
About the Author
Mr. Olsen, a former adjunct professor of intellectual property law, has over 30 years of experience in all aspects of intellectual property law. Mr. Olsen is a founding Partner of Schmeiser, Olsen & Watts LLP and a former United States Patent Examiner. Mr. Olsen has prosecuted numerous patents that have been litigated and received damages of over 60 million dollars. Additional activities include teaching seminars, appearing as a guest lecturer on intellectual property matters for corporations and educational institutions, and evaluating and consulting with clients regarding the scope, enforcement, and protection of intellectual property rights.
