Wednesday, January 20, 2016

Turmoil in the US Patent System- Why Bother?

"The US patent system may have lost some of its mojo, but that doesn't mean that these assets are any less deserving of attention.  For small and mid- sized businesses in particular, it is more crucial than ever to keep their IP house in order...IP protection can seem tangential to the core goal of getting their invention out...moreover, the cost of applying for, prosecuting and maintainng a patent can at first blush seem prohibitive.  Throw in heightened risk factors in today's environment and it becomes even more apparent why patents have become a turn-off for many smaller businesses..." (Mighty oaks from small acorns grow" Jack Ellis,

The current place and value of patents in the US economy is captive of a negative churn.  News stories on patents focus on: a) litigation where a patent owner has sued a competitor for alleged infringement only to be counter-sued for alleged infringement; b) massive monetary awards coming out of multi-year litigation award which immediately initiates another costly litigation in the appeal process; c) multi-billion dollar acquisitions by one tech giant of another's thousands of patents to protect a single product line.   Amounts in the hundreds of millions and billions of dollars are now commonplace in litigation and acquisition.  It is no wonder, then, that the inventor in the garage wants no part of the patent process.

It is understandable that an intimidation factor would be very much in play.  But, it is of critical importance that the inventor have a clear understanding of the risks involved in not getting one or more patents on his invention or design.  Several reasons why the inventor must apply for a patent:

  • If you don't claim it, you don't own it.  The fundamental criterion in a patent prosecution.  By law, the patent application for the invention must specifically state what its utility is, what the invention does step-by-step, sequence-by-sequence.  This is where the protection resides when the patent is granted by the USPTO or for entity if applied for in a foreign country. 
  • A patent(s) provides, when utilized appropriately, a "Barrier to Competitive Entry" as described in Chapter 4, p82, of Perpetual Innovation- A Guide to Strategic Planning, Patent Commercialization and Enduring Competitive Advantage (V2) by Hall & Hinkelman.  A barrier patent strategy works in key ways; a) it signals the customer market that this invention/product is good enough to be patented reinforcing high quality and value and that this is the only source, b) signals potential competitors that the product is legally protected.  To enter the market, a competitor must "design around" the existing product which takes valuable time in the market adoption cycle.
  • A patented product provides another advantage to the owner- that of the potential for value-added patents that improve/enhance the original product.  Value-added frequently comes from customer feedback on new needs and functional improvements.  The only way to enhance the original and extend its life cycle is by having a patent on the original product.
  • Strong patent protection and constant market vigilance are essential in asserting infringement claims when appropriate.
In this global economy, competitors are everywhere and for many the only operating method is take what you can when you can and the hell with everything else.  As the inventor, you have spent years, long days, sleepless nights and emotional exhaustion getting toa market introduction.  Don't risk losing your just rewards.  Patent.

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