Patent Facts & Fiction – Part 2
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3-part series debunking the most widespread and misleading myths about patents. |
Part 1 of this series began by introducing the official definition of what a patent is and laying out 7 widespread but dangerous patent myths. We will now begin to debunk each one.
Patent Myth #1 - "You can patent an idea."
No, you can't. No one can, because patents do not protect ideas. They protect, in the words of patent lawyer and IPWatchdog.com founder Eugene Quinn, "identifiable embodiments" of ideas.
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"Unfortunately, despite what you may have heard, there is no effective way to protect an idea through intellectual property law. Copyright protects expression and patent law protects inventions, and neither protect ideas. In both cases the idea is the first critical step, but without some identifiable embodiment of the idea there can be no intellectual property protection. That does not mean that you should give up when you only have an idea, but it does mean that you ought to proceed to flush out your idea to the point where it is concrete enough to be more than what the law would call a "mere idea." The moral of the story is that ideas alone cannot be protected.." - Can Ideas Be Protected? [emphasis added] |
In other words, you have to actually create something based on the idea. That's what you can patent. This might sound obvious now that it's been explained, but it's astonishing how many people believe they can scribble down some idea or concept they thought up and get a patent on it.
One big reason this myth gets so much mileage is invention scam artists. It is easier for them to sell products and services to naïve inventors if the inventors believe getting a patent is as simple as thinking of an idea. It's a much harder sell when you add "but you actually have to invent something based on the idea first."
Nevertheless, that is exactly what you have to do. So ignore anyone who tells you otherwise.
Patent Myth #2 - "The US Patent & Trademark Office will stop people from infringing on my patent."
No, they won't - unless you bring a lawsuit against the person or company you believe has infringed on your patent. Only once you prove that someone has indeed infringed on the claims made in your patent will the US Patent & Trademark Office get an injunction issued against the infringer forcing him to stop.
You may be asking "well how hard can that be?" Unfortunately, it's impossible to give a one-size-fits-all answer to that question. It depends on many things, such as how complex your patent is and how flagrant the infringer's violation of it is. If your patent is relatively simple, an experienced patent attorney might have an easy time proving that it was infringed upon.
On the other hand, if your patent is relatively complex, even the best patent attorney might take years to successfully prove infringement and get an injunction issued to stop it. Only the patent attorney you work with can accurately forecast how long that will take.
Nevertheless, it is important to know that the US Patent & Trademark Office is in no way "looking out for you" in the sense of proactively or automatically stopping people from infringing on your patents. They will only act when you demonstrate an infringement via the courts.
Patent Myth #3 - "Patents are intrinsically valuable."
Refer back to the US Patent & Trademark Office's official definition. The pertinent part for this myth says "What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention." What does this mean for the idea that patents are intrinsically valuable?
It means that they are not intrinsically valuable. If a patent represents nothing but the right to stop others from making, using, or selling the invention, it logically follows that the patent is only valuable if other people want to make, use, or sell the invention. That is, if it is commercially viable.
So you see, it is possible for a patent to have no value (an invention nobody wants or needs), some value (an invention some people want or need), or high value (an invention lots of people want or need.) The important thing to remember is that a patent's value hinges on whether people want or need it, not any intrinsic value that all patents have.
This myth sets the stage for Patent Myth #4, which is also very widely believed.
Patent Myth #4 - "Simply having a patent allows you to make money from it."
The upshot of believing patents are intrinsically valuable is believing that simply having a patent allows you to make money from it. Nothing could be further from the truth. Even if your patent has value (that is, people want or need the invention it protects), that is still no guarantee of making money.
If you read our "Before You Patent It" series, you know that Henry David Thoreau never built a better mousetrap and the world never beat a path to his door. That saying is only partially correct. Building a better mousetrap is important, but spreading the word about it is equally important. Same goes for making money from a patent.
If you want to sell, license, or otherwise commercialize the patent, you will need to market it. You will need to make entrepreneurs, retailers, and manufacturers aware that it exists. This can be done in several ways:
- Creating a pitchbook for your invention
- Putting together a presentation for your invention
- Marketing it only to retailers and manufacturers most likely to be interested
- Etc.
PatentHelpNow.com has several free articles on each of these subjects in particular and on commercializing your patent in general. Review them and determine whether you are willing or able to do that kind of work - before you get a patent.
Part 3 will wrap up this series by debunking patent myths 5, 6, and 7.
