Don’t just roll the dice, take these steps to steer clear
Have you heard of Patent Prison? That’s my term for the quagmire that too many companies – especially brand-new ones – get sucked into when handling innovations. Odds are the company you’re currently working at has been there, too.
Patent Prison is time-consuming, legally complicated and expensive. It can keep businesses from moving forward with new ideas. And unlike MonopolyTM, there is no easy “Get out of Jail Free” card.
Let me elaborate.
I often hear the same declaration from clients and other acquaintances: “We’re going to get a patent.” Patents can be a matter of pride, legal protection and, for those hoping to license, a potential source of income.
That’s all great! What’s the problem?
The road to Patent Prison can start with mistaken logic, heavy financial investment and failure to consider other options besides a utility patent. I don’t have anything against patents per se, but I do object to their indiscriminate use.
Some key points to consider:
- Utility patents are typically in the ballpark of $10,000, a lot of money for a brand-new company. Patents become much more expensive for large companies, when filed worldwide and when large numbers of applications are being generated.
- Patents are, on average, only going to be granted about 50 percent of the time (at least here in the U.S.).
While 84 percent of larger companies valuations are in intellectual property, a significant chunk of the IP valuation is likely not in utility patents.
- My premise is that we should realign our spending, ideation and strategy to consider all options in front of us on how to protect our ideas – before we land in Patent Prison (play plot thickening music now).
How to avoid Patent Prison
1. Consider your other protection options. These include copyrights, trademarks, design patents, trade secrets and so on. The right mix for you is unique to your situation.
Patents are likely the most expensive form of IP protection you can throw your money at, so shouldn’t you consider cheaper options just in case? If you think copyrights are worthless, you better check out my earlier post at https://pearsonstrategy.com/2016/01/could-copyrights-leave-patents-out-in-the-cold/.
2. Consider bribing the guards by having professional prior art research done before you act on a new idea. Why yes, prior art research is something we excel at here at PSG, thanks for asking.
With high-quality prior art research, you and your attorney will have the information you need to determine whether your idea is patentable before you pay for the process and wait months to learn you will not receive a patent.
Prior art research can save both time and money by providing information to help you craft a terrific, informed patent application. You’ll see fewer office actions issued by the patenting authority and you may even discover additional opportunities or markets.
3. Think about all those companies that have likely beat you to the draw with granted patents. It is likely they will have their Patent Prison Police (say that three times fast) looking for violators who infringe upon their Intellectual Property. Can you afford a lawsuit?
The fastest way to identify infringers is a prior art search because most patent applications are filed WITHOUT benefit this key research. These companies will reveal to the world that they are or soon will be a patent infringer because applications become public. That means anyone who cares may see what they’re up to. Those who file patent applications thinking they are so innovative and smart may be neither.
The End Game
With some willful prompting, you, your team, and your council can decide if utility patents are the sole form of needed IP protection, are part of a mix of protections, or not needed at all. You will likely protect your idea better and save enough money to buy that neat right angle grinder you saw at the store this weekend…just in case you ever wind up behind bars.
Scott Davidson (Wikimedia)