Patenting Your Invention: the Ugly Truth – Page 9
Succeeding with and without patents
Two inventors’ experiences
Mark Sanders is a successful inventor, designer and entrepreneur whose products include the Strida folding bicycle and OneTouch™ can and jar openers. Though he patents almost everything he works on, he is very sceptical about the efficiency and value of patents and about the whole food chain that feeds off them. Read more from him at Tara Roskell’s Ideas Uploaded. Here’s an edited version of his thoughts on invention protection without wasting money on patenting:
1 The main use of a patent is as something to show the CFO/admin types at a company, who rarely put cash into just an idea, even if there’s a prototype. Dragon’s Den-type grabbers love patents: ‘Let the poor sap waste money on expensive patents, then we’ll snap up 80 per cent of the company for bugger all’. That said, not all CEOs are dragons and things tend to improve once a relationship is built up and everyone shares a common interest.
2 Ideas are rarely ripped off when shown at early stages, and especially not by big companies who have more to lose in potential bad PR, and may even want a reverse type NDA.
3 Fakers and copiers are only interested in the product, not the idea. They wait for all the hard work to be done and a market built. Only then do they copy.
4 Use design registration. It costs much less than a patent, and if extended to the USA (or done just there) has a huge advantage in that it’s called a design patent in the USA. So you can say, ‘I’ve got copyright, design right, a registered design and patent [application]’, which sounds more impressive to would-be licensees, CFOs etc.
5 If you must have a patent, don’t license it – assign it. In effect you sell it, but keep a conditional interest. For example, you might negotiate a deal whereby if sales are less then x, you get first option to buy it back. (Like any property or capital goods, an assignment can be re-assigned back or ownership transferred.) Assignment has saved me many £££s over the years because – depending on the contract you negotiate – the costs for ongoing patent application(s), translations, reviews, and fighting (or scaring off) infringers are paid by the assignee, who is usually a company with a lot more money than you. And you can still take commission or royalties on sales, whichever is the more tax efficient.
6 If relevant, enter competitions. These independently and publicly fix your invention in time and link it to you.
7 Get sensible PR and publicity from trade press only, so as not to spoil a future launch into national media. This again independently fixes the invention in time and acknowledges you as the inventor and IP owner.
8 Chasing infringers in their own countries is very expensive, especially when you’re the foreigner and especially when it’s China. But even fakers have to promote their wares, and this gives you your best and lowest cost way to nab them. So, for example:
– If they turn up a trade exhibitions or fairs, show evidence of your IP ownership to the organisers and have them kick off the infringing exhibitors. Ideally, invite the press to this confrontation, as it makes great PR. Asians especially hate to ‘lose face’ in such a public way. Milk as much PR from the results, to scare off others.
– eBay are now much better at removing fakes, even though it’s almost a full-time job reporting them.
– Magazines and even blogs are keen to stay above board, so usually respond well if you point out that they’re mentioning or promoting fakes. Again, milk it for positive PR. Praise them for doing the right thing – like saving consumers from dangerous fake bicycles, or fake kitchen gadgets that don’t work.
– This also sometimes works with Amazon, who are not as good as eBay at weeding out fakes from their third-party sellers. (eBay has learned from being sued. Maybe Amazon’s turn will come!)
The thread running through Mark’s tips is that you have to police your own IP because no one else will. This means finding infringers and doing something about them. It’s time consuming but far cheaper and probably much quicker and more effective than an IP lawsuit. And in doing it yourself you get known, which can be useful PR; and you get yourself respected, which may make other infringers think twice about copying your products.
John D Smith is a US inventor/entrepreneur who is even more dismissive of patents – so much so that he’s written an eye-opening and very readable book (ebook or paperback) called ‘DON’T File A Patent‘. He is the inventor of Storm Stoppers® hurricane window protection panels, with sales of almost $10m since 2004 – without benefit of a patent. But it’s not as though he started out not wanting one. He spent around $25,000 on patent applications, only to be given the run-around for years by USPTO examiners who kept refusing him a patent despite ample evidence of novelty.
During the process he learned the hard way about the shortcomings of patents and the patent system. Out of this experience he wrote his book, which also contains many tips about what you should prioritise rather than a patent. John’s position is unequivocal: ‘Filing a patent is a game an inventor cannot win. You may be able to get a patent, but it will cost you tens of thousands of dollars and many years. And, in my experience, a patent is worthless!’
Mark and John, like a growing number of other entrepreneurial inventors, have discovered that patents don’t necessarily help products to succeed. In John’s case, an irony is that a previous invention for which he did get a patent failed commercially. The one that wasn’t allowed a patent was the winner.
John also argues that it doesn’t matter if others infringe your IP. You can’t stop it anyway, and with a patent to defend – or with a patent you think you should defend – you could be tied up for years in expensive, stressful, distracting, time-consuming and probably fruitless court cases. (Even if you win, being awarded damages doesn’t necessarily mean you will actually get them.) Without a patent, you’ve got the liberty to concentrate on beating your infringers in other, more effective ways, out there in the market-place.
Mark and John are not mavericks or special cases. They simply take a normal entrepreneurial view of life: don’t look for a set of rules and conventions to follow – do whatever gets the job done. If more inventors thought more entrepreneurially, they might not get so hung up on patents.