Entrepreneurs are often dissuaded from trying to get a patent on their invention for a number of different reasons.
Foremost is the concern that a large company can steal the invention forcing the inventor into expensive litigation. However, most large companies innovate on their own and will license or purchase the rights to inventions of others rather than stealing them and risking expensive litigation and bad PR. In addition, those companies are aware that there are patent attorneys out there that will take a patent infringement case on contingency if they think the case is strong enough and the pockets of the defendant are deep enough.
In the end, it is rather risky for companies to blatantly steal a patented invention and start selling it on their own, even if they are stealing the invention of a smaller company or an individual.
Furthermore, theft is frequently an indication that the product is successful. If the product is making money, then the owner can likely fund a lawsuit against a competitor that is about their size. Moreover, investors and large companies are more likely to purchase the rights to an invention when it is embodied in a product that has a proven sales record.
Inventors are able to license technologies to larger companies and many successful startups have this goal in mind from the beginning. Some inventors are able to successfully license their technology prior to obtaining patent protection.
It is also true that competitors may own patents to competing or similar technologies, thereby blocking a patent owner from practicing their invention. This frequently happens when the inventor owns a patent on an improvement of an invention that is already subject to a patent that is still in force.
Basing your business around an improvement of another’s technology will require cross licensing. Freedom to operate searches can determine whether this is a problem prior to a patent application being filed.
In addition, some people criticize patents as being too narrow to be of any use. However, if the patent covers the aspects of the invention that the inventor wants to commercially exploit, then it can be extremely useful to the entrepreneur.
The reality is that if a patent’s claims do not cover the portion of the invention that the inventor believes is most valuable, then it likely is not worth having. Some inventors are more focused just on getting a patent rather than making sure they obtain a patent that covers what they need it to, and those people are likely wasting their money.
The focus of a patent strategy should be to protect core technologies that give the company a competitive advantage. Patents can be very useful business tools when they are part of a focused business strategy. Entrepreneurs that are considering applying for a patent would do well to plan carefully and consult with a professional regarding their strategy early on.
Russell is a native of Wilmington, N.C. and has been practicing law in Eastern N.C. since 2004. Prior to that, he worked in Chapel Hill and Durham as a research technician on teams exploring RNA-based gene therapies, viral fusion inhibitors, and the role Galactocerebroside plays in protein localization near nodes of Ranvier. After passing the patent bar in 2003 and becoming a registered patent agent, Russell received his law degree from Georgetown in 2004. He began his legal career representing clients in personal injury matters but later left personal injury to provide patent prosecution services to law firms in China and Taiwan prior to joining The Humphries Law Firm in 2014. Russell helps individuals and businesses protect their innovations, creations and business information using strategies based in patent, trademark, copyright and trade secret law. His work includes both strategic planning and dispute resolution. He assists clients who want to buy and sell businesses, and license or transfer their intellectual property assets. Russell also assists with the firm’s litigation practice, particularly in insurance and employment disputes.
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