Patenting Your Invention: the Ugly Truth – Page 3
3: Ownership is not guaranteed
A charming feature of the patent system is that this precious patent, bleeding you dry for years on end, may one day be judged not to be yours after all.
If you own a patent, anyone at any time can challenge your right to own it as it stands (a qualification we’ll get to shortly). This makes a patent a totally insecure but still expensive form of property. And of course, a challenge to your patent triggers yet another costly legal process that you have to fund yourself.
Why might a company challenge your patent? Several reasons include:
• If you’ve accused them of infringing your patent, it’s a standard response. You challenge them, they challenge you back. It buys them time, makes even scarier costs inevitable, and nicely muddies the pool so it’s harder to see which of you is the good guy.
• They may want to start selling a product based on your patent but without having to pay you royalties, so this is their pre-emptive strike: knock down your patent, get you out of the picture.
• They may have a competing technology that your patent threatens, so they want to cut the ground from under you.
• They may genuinely have a case. Not all companies are predators. Many will be acting in good faith to protect their own products and IP.
Your challenger will try to show that earlier patents or products contain key elements of the technology for which you have been granted a patent. Their legal argument will be that those elements should never have been in your patent and must now be removed from it. If a court agrees with them, that’s what happens.
The challenger’s unspoken intention is to rip the guts out of your patent until there is nothing left worth owning. Often this tactic succeeds, and for good reason. Claims for technical novelty can be fuzzy at the best of times and official patent examiners are not infallible. (Particularly in the USA. We’re grateful to Mike Quinlan of Thales UK for tracking down for us a 2003 US Federal Trade Commission report on innovation. This included findings that ‘45-46% of all patents litigated to final results are held invalid’ and ‘the USPTO’s grant rate […] reached 98% in 2000, considerably higher than in Europe (67%) and Japan (64%)’. This led one researcher to conclude that ‘The comparative lack of rigor by the USPTO is apparent’.)
Therefore, the final judgment in a challenge may hang on who makes the more persuasive or (in very complex technology cases) intelligible argument. And that, as in other areas of law, can depend on whose side spends the most money and hires the most silver-tongued representatives.
If you’re an inventor, that’s unlikely to be you. So, you’ve spent a ton of money feeding the patent system, and now your patent has gone up in smoke. Does the patent system give you any money back? No. Can you sue the original patent examiner for getting it wrong? No.
4: The time factor
The patent system claims to be all about encouraging innovation, but few things are more harmful to innovation – certainly to invention – than the very inflexible timescale of patenting. Once an application is filed, actions have to be taken (and paid for) not to suit you and your project, but to meet deadlines dictated by the patent system.
Details of these timescales are available in A Better Mousetrap, and from national patent offices, so we won’t bother too much with them here.
The big point is that the moment you file a patent application, a clock starts ticking. It might as well be the timer of a bomb.
• After 18 months, your patent is published. Then the whole world knows about your idea. (Not necessarily a good thing. In fact, often a bad thing if your invention is still a long way from market.)
• After 30 months you start paying filing and translation fees to each country in which you want ‘protection’ (pause for hollow laughter).
• At 5 years, you start paying the dreaded and unfair annual renewal fees, again to each individual country.
The big bills don’t come straight away. The initial costs are relatively low, making patenting a ‘buy now, pay later’ scheme. This is how so many inventors get drawn into a system that ends up doing them more harm than good.
At the start of your invention project, optimism may be running high and 30 months – let alone five years – seems plenty of time to turn your idea into a money-earning product or licence. Indeed, the patent system encourages exactly this thought process. It defers the main costs for a period so that they can be paid out of income from the sale of your product or the licensing of your patent.
But in practice, few inventions get to market in anything like 30 months. Many may be nowhere near their market after five years, when renewal fees start biting. How does this happen? There’s no mystery to it: it’s life. Time flies. Funds dry up. Problems and delays become routine. Hopes are repeatedly raised, then dashed. The project starts spending more and more time on hold. Even when things are moving well, they never move fast enough. Invention projects lasting 5-10 years are the norm, not the exception.
You can deal with it, but you have to plan for it. And that must include planning the timing of any patent application, because patenting your invention too early is a good way of reducing or even destroying any chance of success. In their pre-patenting advice sections, national patent offices are unlikely to spell this out in the very big print it merits. Why should they? The patent system works for itself and for big businesses. It doesn’t work for you.
(And when governments periodically review various aspects of IP, they never include inventors or start-up business managers on their investigating committees, which as a result don’t mention inventors when they report. Officially, inventors might as well not exist. But their money’s OK.)