Feb. 11, the birthday of Thomas Alva Edison, is National Inventors Day in the United States. It’s good to recall a comment attributed to Emerson that “if you build a better mousetrap, the world will beat a path to your door.” On National Inventors Day, it might be good to look at how your better mousetrap is protected.
Competition drives value.
The American economic system is based upon the ideal of free-market, competitive capitalism. Competition is encouraged, and through competition, products and services are offered at the best value to customers and consumers.
Competitors strive to offer a better product either by price, performance, or availability, or by some combination of all three. In this competition, competitors often innovate; they develop innovations in performance and features; innovations in reducing costs; innovations in manufacturing that increase capacity and/or reduce process times.
The general rule in competition.
The general rule is that competitors can use whatever has been developed to compete: Any innovation is available to everyone.
Our legal system provides four exceptions to that general rule in order to encourage technological advancement and to protect the customer from fraud or misrepresentation. Those four exceptions are patents, copyrights, trade secrets, and trademarks. This blog will focus on patents.
Patents protect and promote innovation.
Patents provide a formal way to protect innovations by an inventor. The reason for excluding patented inventions from the general rule is the recognition that considerable expense, resources, and time may have gone into creating the invention, and the inventor ought to be allowed to have an exclusive right to make, use, and sell the invention for a limited period of time to recoup those expenses and provide a return that rewards the inventor. This protection also encourages others to seek to develop future inventions. This patent protection promotes an environment of constant innovation, keeping America competitive.
No patent, no protection.
Without patent protection, any invention that can be obtained publicly, including reverse engineering, can be used by a competitor. Indeed, reverse engineering is encouraged by public policy to encourage competition. However, if the invention is patented, then any public disclosure of it or any reverse engineering to ascertain it does not allow someone else other than the owner or licensee to make, use, or sell the invention or any product or service that includes the invention.
The upshot of all this is that where an invention gives a business a competitive advantage, and it would be difficult if not impossible to prevent revealing the invention in the distribution and sales of the product or service, then it may be cost-effective for an inventor to patent that invention.
What patents do.
Even though knowledge of the invention may be public, patent protection gives the patent owner the right to exclude others from making, using, or selling the invention. Unlike trade secret or copyright protections, it does not matter whether the patent infringer derived their knowledge of the invention from the patent-holder or had independently invented it; the patent owner can exclude anyone from making, using, or selling the invention.
Cost/benefit of patents.
Patent protection can be expensive – or at least relatively expensive for an inventor. If the invention could easily be designed around, or if the invention will only have temporary value, then the costs of the patenting process may exceed any benefits expected. Some inventions have short lives because the technology is changing so quickly or because it may be going obsolete. If there are many alternatives to the invention, then the roadblock of a patent will not significantly detour a competitor who will simply use one of the alternatives
Of course, many of these factors in deciding whether to patent an invention cannot be determined with certainty, but experienced technologists can provide reasonable probabilities. Often, it is only one patent out of 10 that provides the requisite return, but it is difficult to know which one of the 10 protects the invention with sufficient staying power in the market place.
That is the reason patent portfolios are developed, a collection of patents covering related inventions. However, every portfolio begins with the first one. Do you have an idea worth protecting?