I am asked about patents on a weekly basis.  It seems that there is a lot of misunderstanding about patents, trademarks, and copyrights….but especially patents.

You can patent anything.  Also, not everything can be patented.

Both of these statements are true.  With a bit of creativity, and a good patent attorney, a patent can be secured on just about anything.  Expect a cost of about $14,000 in the United States.  You can probably get it done cheaper, but please read on.

With regard to the second statement, you may think that your invention is ready to patent, but in its current state it may not be patentable.  There are an awful lot of filings in the system, and sometimes your innovation just doesn’t pass the test when compared to existing intellectual property (IP).

Why do you want a patent on your invention?  It’s true that patents provide protection.  The protection, though, is often what is misunderstood.  Patents to not prevent anyone from competing against you.  They do not prevent anyone from building what you have invented, either.  Patents give you the right to defend your invention in the courts.  After the expense of fighting, you may not gain anything substantial.

What if you patent an invention and then another company begins producing the same thing?  Let’s assume that both you and your competitor spend about $150,000 bringing the invention to market.  If your competitor has not made any money yet, then what are you fighting over?  You certainly want the other guys to stop doing what they’re doing.  You may notify them of a suspected patent infringement with the hopes that they cease.  They just spent a bit of money, so they may not want to.  Get ready for legal expenses!

If you bring a lawsuit against your competitors and win, they can be barred from producing your invention.  That’s good…especially if you win back your legal fees.  If they don’t have any money, though, you may only get the satisfaction of ceased competition.  This is not such a rosey picture as the “pure protection” that many people assume a patent provides.

What if you lose the lawsuit?  Your competitor could have a patent of their own that was just issued, and carefully crafted to work around yours.  You could end up paying their legal fees on top of your own.

I am not, by any means, recommending that you avoid seeking a patent on your invention.  Just consider the reality of patent protection and whether or not a patent makes financial sense.  If it’s likely that your patent can be worked around, then it may not be worth the cost.  And – more importantly – remember that patents don’t make money.  Businesses make money.  Worry about a patent after you have fully explored the possibility (and process) of turning your invention into a business.

April 26th, 2011 addendum – special thanks to Micah for correcting my terminology.

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