Patenting Your Invention: the Ugly Truth – Page 8
What can you do to survive the patent system?
Okay, you’re an inventor, or you’re involved in a project to exploit an invention. What do you do?
You may need a patent.
If market research indicates that you’ve got a game-changing idea with good medium- to long-term prospects, a patent may be the only IP show in town, even though the tickets are overpriced and the performance underwhelming. We know some inventor/entrepreneurs with technologies that they exploit by licensing the IP worldwide. Their day-to-day work consists largely of dealing in licences and their businesses simply wouldn’t exist without patents. We’re happy to acknowledge that – though even they might admit that defending those patents is needlessly expensive and draining work.
But relatively few inventions make the Premier League of licenseable technologies. If your invention is a single product that owes more to clever design than new technology, its market success may be far less dependent on a patent than you think. So ruminate your way through this checklist before doing anything about your IP.
• Ignore anyone who says you must patent your idea. They’re much more likely to be wrong than right. And ignore anyone who says you must patent your idea straight away. They’re dangerously wrong. Read the warnings in A Better Mousetrap.
• Study the pros and cons of all forms of intellectual property rights (IPR). For many inventions and products, a combination of (usually) much cheaper forms of IPR will give you more effective protection than a patent. More details in A Better Mousetrap – or talk to a patent attorney.
• Don’t regard a patent as the best. Regard it as the worst. Think of it as a burden and distraction you don’t want, except as a last resort.
• To judge value for money, calculate backwards from an estimate of what you might actually earn from your invention. As explained in A Better Mousetrap, it may be pennies, even a fraction of a penny, per unit. If your predicted income won’t healthily exceed the cost of patenting, including those wretched renewal fees, a patent may make no economic sense.
• How long will your invention sell before interest in it fades or the technology becomes outdated? Patents take years to be granted and many products have short life cycles, so if it’s all going to be over by the time you finally get your patent, it may not be worth the bother and expense.
• Don’t expect a company or licensee to pay the patent costs for you. Some may (in return for ownership of the patent) but most won’t.
• Look at all patents for similar ideas. Is there what is known as a ‘patent thicket’ (many overlapping patents)? Is there really much hope for another one? If all you’ll be doing is patenting a small difference that markets won’t rate highly, you may be throwing money away.
• Will anyone actually want to steal your idea? Infringers are rarely interested in ideas; they want to leech off well-known products or brands. If your invention is never going to make the big league it may not be worth paying patenting-sized costs to (not) protect it. Look instead at other forms of IPR.
• Consider what other aspects of your invention you might spend your patenting money on. In many cases, having a product on the market and the support of distributors, retailers and even consumers may give you better (or no worse) protection than a patent. In effect, you’re trading off one risk against another, and the greater risk may be leaving your project underfunded because you’ve diverted so much money into patenting.
• If you conclude that a patent isn’t justified, or it’s too early to apply, don’t be persuaded to change your mind because some company or bank or investor wants to see a patent application. It will be safer to walk away. If your invention is good enough they won’t be your only opportunity in the world. Bear this in mind too: companies that insist on seeing a patent application before they’ll even look at an idea tend to be the ones least likely to want to deal with inventors. So you go to all that cost and trouble, just to make it easier for them to reject you!
• Alternatively, apply for a patent if that helps the project over a major hurdle, then abandon it before the big costs become due. For example: apply just prior to product launch, stick ‘Patent pending’ or ‘Patent applied for’ on all marketing material for 18 months, then abandon the application. By then you may have established a market presence that can survive the lack of a patent. It might be cynical, but if it’s effective business – why not?
• If a patent is genuinely justified – you’ve got a big invention with good sales, growth and licensing potential for at least several years – consider limiting your cover to a few key markets. Patent attorneys tell us that this is what big companies tend to do. However, experience may have taught big companies where their best markets for a new product are likely to be. Inventors may have to guess. Even so, we wonder why so many inventors, advised by patent attorneys, still file in more countries than necessary
• If a patent is genuinely justified, other significant costs will probably be justified too. Therefore, bring more people on board to share the overall cost of the project. This may mean diluting ownership and control of the IP, but if the alternative is painfully slow progress on your own, go for it.
• If a patent is genuinely justified, consider very carefully the timing of an application. As we explain in A Better Mousetrap, applying prematurely for a patent can be a huge mistake. If all you want to do in the early stages of your project is protect against disclosure, there are simpler and cheaper ways to do it.
• Delaying filing also gives you time to think, and in that time other things may happen. You may conclude that you don’t after all need a patent.
• If you use a patent attorney for any aspect of IP protection – and we recommend that you do – clue yourself up beforehand (read A Better Mousetrap) and insist that you want the most appropriate IP protection for your invention and your circumstances. Tell him or her that you don’t want a patent unless it can be fully justified. And if you think it isn’t, don’t be easily persuaded otherwise. It’s you who has to pay, not them.
• Bear in mind that a patent attorney can’t do your business thinking for you. Though he or she is often the first clued-up professional an inventor meets, they’re legal experts, not business or marketing experts. And they’ll probably tell you that, so make sure you listen. Asking a patent attorney for advice about commercialising your invention is like asking a plumber for advice about selling your house. They may have a smart idea or two, but it’s not their trade.