Too quick to protect those patents?

When we meet with inventors, entrepreneurs and innovators with what they believe is the “next big thing” it seems what they most often think they need is money. More to the point, the money they want is for protection, with this most commonly being for patents.

A Provisional Patent with its international 12 month priority date protection, followed by a PCT application and then the National Phase (where patents are sought in every place imaginable) seems to be the order of the day.

The fact is, only a tiny percentage of patents ever return a cent to their creator, but notwithstanding this, too many people see patents as the panacea. Unfortunately, apart from the risks and uncertainty in obtaining strong defensible protection, it’s the costs involved in patenting that most often brings inventors to their knees, even before they have a final working prototype.

The reality is quite different

In the first case, what is not widely understood is that a patent does not so much protect an idea, what it protects is the particular way a problem has been solved. This is why patents are best referred to as “Method and Apparatus”.

Indeed the inventor’s ideal way of solving the problem is normally referred to in patents as “the preferred embodiment”. Of course in many cases there are other ways to solve the same problem. Good protection is best obtained in narrow fields where there is little room to manoeuvre with few other possible embodiments.

For example the helix thread would be a great invention to protect because of its fundamental simplicity. So too the Star or Phillips head screw, again with the simplicity being the key to a strong patent. But then of course some “bright spark” may see the Phillips head screw as a stimulus to create an Allen key drive head, or a triangular recessed drive head.

The other issue with a patent is that it discloses the problem and of course the solution. Indeed this is one reason, often after a great deal of research, expense and effort, sometimes patents are not sought. Simply the knowhow is retained in-house as a “trade secret”.

Remember the contents of a patent eventually become public knowledge. It is said that Coca-Cola and Kentucky Fried Chicken retained their IP as well kept trade secrets with no public disclosure.

What does a patent really offer?

Good patents that you are prepared to defend can really work. The KODAK versus Polaroid case of many year ago proved that and there are many other examples.

But understand the risks. In reality, and we have said this before, a patent is only as good as your willingness and ability to defend it.

Roger La Salle,

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