Patents will make you rich? Patents protect you from infringers? Patents are the only good strategy to protect your invention? Never, ever take it for granted!
The average entrepreneur typically doesn’t know much about intellectual property. Some of them may have heard about patents, trademarks or copyrights, but usually it is a mixture of half-truths and false assumptions. In this cycle of articles, we are aiming to dispel some of the most common myths and misconceptions about patents so that they can be used more effectively and strategically benefit the business.
1. Getting a patent is the only good strategy to protect your invention
An inventor can choose to disclose the nature of an invention and in return receive a patent, but first he has to pay all the fees. A patent grants the holder the legal basis to enforce his sole right to make, use, import or sell his invention in the country for which there is a patent for a limited period, generally 20 years from the date of filing for the patent. Alternatively, the invention can be kept secret; in this case the idea is protected as long as it is not revealed or reverse engineered by another person – potentially this protection could last forever. Unlike patents, trade secret protection is relatively cheap and easy to obtain. However, if the information is ever disclosed to the public, trade secret protection may be irreversibly lost. That’s why the most famous trade secrets like formulas of Coca-Cola, WD-40 penetrating oil, Listerine mouth wash or KFC coating have been kept secret for decades – for those companies revealing the details of their secret recipes in a patent application would mean the end of their business immediately after their patents expired.
The choice between patenting or keeping the nature of your invention secret is strategic – the method of protection should be based on the needs associated with the individual product, whether you are confident that it can be kept secret, and how you plan to exploit that product in the future.
2. Patents will make you rich
There are many people who believe that patenting is a guaranteed get-rich-quick scheme. Unfortunately, without simultaneous actions related to the product itself and the business plan by which it will be marketed, such a belief is not much more than wishful thinking. The vast majority of patents probably are not even worth enough to cover any prosecution costs, some generate a limited return, buy only a very limited number have significant value or are highly valuable. This is because a successful invention typically requires building a business around that invention or at least a plan for realizing the financial value of the invention. The situation when someone wants to buy just an idea, even if there is a patent application pending, is extremely rare.
The conclusion is that patents are commercially valuable only if they can be used to effectively secure a market and exclude competitors from making, selling or using the invention covered by patent’s claims, or they can attract investors, by signaling the company’s quality through worthwhile patent applications or patents.
3. A patent protects you from infringers
Having a patent itself doesn’t protect the owner of the invention from being infringed. In fact, a patent provides only a presumption that the claimed invention is new, involves an inventive step and is industrially applicable. Just a presumption, as each patent after issuance by the patent office is vulnerable to legal challenge in court, and historically approximately half of all litigated patents issued in United States are later found to be invalid. Therefore, a patented invention is not protected unless you file a civil law suit in court, a judge finds the patent valid and the accused infringer does in fact infringe on one or more patent claims. In conclusion, patents provide a basis for legal actions, but if the patent owner cannot enforce it for whatever reason, the patent is effectively toothless.
4. Once you get a patent in one country you are protected worldwide
No, you are not. Patents are territorial rights and are enforceable only within the boundaries of the issuing country. In other words, if you have not been granted a patent with effect in a given country, your invention will not be protected in that country, enabling anyone else to make, use or sell your invention in that country. There is no such thing as a “global” patent; however, if patent protection is sought for many countries, European or International (PCT) patent applications can be filed, to ease the procedure. Usually companies file a patent application in their home country, and then, within maximum 12 months, file a European or International patent application. You should understand that a European patent can cover more than one country as designated by you, because it is granted by the European Patent Office. However, an international (PCT) application only covers search and examination; a patent can only be granted by individual countries or the European Patent Office.
Marcin Gędłek – lawyer, MBA; expert in IP protection and management. He has over 10 years experience in the Polish Patent Office both on expert and managerial positions