Do you really need a patent?

 In Patent Law, Strategy

Patent professionals – myself included – typically get paid by clients to draft and prosecute patent applications on their behalf. That’s how we make a living. So call me crazy, but I think there are situations where it makes little or no sense to apply for a patent.  Of course, there are also many situations where it does, but I will save those for my next blog post. So what are some reasons not to apply for a patent?

Patents are worthless unless you have a viable business model

Fundamentally, a patent is merely a government recognition that the invention meets certain statutory requirements. The United States Patent and Trademark Office (USPTO) does not care whether the invention has any commercial value when granting the patent. The commercial value of an invention is solely determined by the free market. Therefore, a patent is really only valuable if it is part of an otherwise viable business model.

Patents are often too narrow to adequately protect your product

Many patents – no matter how well crafted they are — end up being too narrow to effectively prevent competition after going through the examination process in the USPTO. Inventions often arise in response to a consumer need, but most patents end up covering a subset of the different ways to address this need, even if they are broadly drafted at the outset. Expressed differently, at best patents cover the invention rather than the innovation, and as a result there are many ways for others to find ways around the patent, making the patent less valuable than what was anticipated at the outset.

Having a patent does not automatically make you rich

The patentee is often incapable or unwilling to create value from the invention. Consumers typically buy a product without paying any attention to whether it is patented or not.   Many inventors think they will get rich just by obtaining a patent, but the reality is that without having a viable product and business model, the patent itself will likely not be of much use.

Alternatives to patent protection

As can be seen, patents are not a “one-fits-all” solution for creating value. While they may be very valuable in some situations, it is important to consider other alternatives for creating value . For example, sometimes a “First mover advantage” can result in you effectively owning the relevant market. You may also benefit from “riding on the coat tails” of another patent holder (e.g., by forming strategic alliances or joint ventures or obtaining exclusive rights to use their patented invention). Yet other options include creating commercial relationships (e.g., contract-based market exclusivity) or maintaining your invention as a trade secret, just to mention a few.

As a patent practitioner, my role is not to give business advice, but to obtain patents for my clients. I generally assume that an existing or prospective client that comes to me has already made a business decision that a patent would be a valuable asset for them. However, I always try to understand the context and reasons for this decision, because having that understanding enables me to provide the kind of advice that best serves their interests – which may actually be not to spend the time and money that is required to apply for a patent.

Mollborn Patents | Patent Protection Made Easy

Fredrik Mollborn has been helping companies protect their intellectual assets since 1997 in the U.S. and abroad. If you are looking to secure your intellectual property, reach out to Mollborn Patents for a consultation.

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