Many of our clients, from startups to multi-national medical device manufacturers, pursue patents on the products and services we help them design.
While every patent applied for by our clients is solely assigned to them, many of our team members get the thrill of being listed as inventors (an inventor is “the person, or persons in United States patent law, who contribute to the claims of a patentable invention”). It is thrilling to see your name on a patent and really does create a historical record of your career as a product developer.
But my one-sided, ego-driven view of patent protection has morphed over the last couple of years when I had to consider what level of protection was practical for a product I was selling. There were a couple key characteristics of the product:
- It was easy to copy both domestically and internationally.
- It was trendy and may not have much market value in three or so years.
These characteristics were at odds with each other. The first characteristic would suggest needing strong copyright and patent protection. In this case, the copyright was difficult to get and any simple changes to the product made it possible to get around the copyright. A design patent would be similarly weak. A utility patent was possible and we considered it seriously and in the end determined that it would be a waste of time and money for a few reasons:
- The likelihood of getting a utility patent was low as we would have a hard time proving our claims were “non-obvious.”
- If we did succeed, it may take three years to have the patent issued. At that point, the market may not exist and anyone that did infringe would already have made their money. Obviously, we had the option to wait to sell our idea until the patent was issued, but at that point, there probably would be no money to be made.
- We didn’t have the stomach or the resources to aggressively defend the patent.
So we decided our best approach was to design the best product we could, market it aggressively and do our best to beat the copycats in the market.
The Wright Brothers focused almost all of their efforts on patent protection and almost no time working on improving their airplanes.
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