Don’t file patent applications out of fear. Instead, focus on how you will use a patent to further … [+]
I used to believe that patenting an invention meant no one could steal it from me.
This was when I was new to the intellectual property game, and naïve. Soon enough, I discovered that’s not the way patents work.
It was 2003, and spring in San Francisco. I remember walking up the steps of the federal courthouse and finding the room with my name it: Stephen Key Design V Lego.
How did I get here? I’d done everything right! Or so I thought….
Let me explain.
I had applied for and been granted multiple utility patents on my invention, a label that spun to reveal more information.
I had licensed this technology to CCL Label, a market leader. Major brands like Rexall Sundown, Jim Beam, and Lawry’s Spices were using the label on their products. It had been featured on the cover of packaging industry magazines and was winning awards.
But, ultimately, none of that mattered when one of the largest toy companies in the world decided to work around me. I had signed a non-disclosure agreement with this company and supplied hand-made samples. But my product was priced too high, prompting them to reverse-engineer it — which, truth be told, is fair game.
After three excruciatingly long years, we settled two weeks before trial.
That experience taught me a very important lesson, which is that patents are just words — words that can and will be interpreted differently by different people at different times.
Today, inventors rarely even get to have their day in court because pursuing a case of patent infringement is absurdly expensive. Because the barrier to entry is so high, only inventors who are backed by a powerful licensee have a chance of defending their intellectual property ownership using the legal system.
So, take it from me: I learned firsthand that having a patent doesn’t stop someone from stealing your idea. What having a patent does is give you recourse to sue, if you can afford to. I was able to sue Lego because my patent attorneys at Carr & Ferrell felt a responsibility to help and agreed to take my case on contingency.
Don’t get me wrong. Many companies across many different industries respect and value the contributions of independent inventors. These companies will be open, transparent, and honest with you. They will want to work with you — with or without a patent.
Nonetheless, whenever I explain that it’s advisable to try licensing a simple idea using an inexpensive provisional patent application (PPA) first, the incredulous questions start pouring in.
“How do I know they won’t steal my idea if my product doesn’t have a patent?”
“If I don’t patent my idea before showing it to companies, how I do know they won’t steal it?”
“If my idea is not patented, they can easily steal it. What’s stopping companies from stealing my idea?”
In my opinion, I don’t believe companies typically steal ideas. Yes, there are always a few bad actors. I do believe companies are sometimes motivated to work around successful products — and that’s a big difference.
Here are some of the reasons why a patent won’t prevent someone from stealing your idea.
Prior art. Is your invention truly new? Who’s to say? Prior art — meaning evidence that the invention in question is already known — exists for everything. People love to debate the prior art.
Variations and workarounds. It’s difficult to get a patent with claims that are broad enough to cover all potential workarounds and variations issued. Why? Innovation never stops!
Litigation is just way too costly for most independent inventors. Do you have a million dollars to spend on legal fees? Your opponent might appeal the decision, tying you up in court for even longer.
The 2011 America Invents Act made it easier to get a patent overturned. While still staggering, the average cost of litigating a patent infringement case is declining because it’s more efficient to go directly to the Patent Trial and Appeal Board.
Putting an end to online copycats is difficult, if not impossible. It’s like playing whack-a-mole: You get one seller taken down, only to have another pop up. There’s little incentive for e-commerce sites to put a stop to it.
Smart companies don’t care. Today, success in the marketplace requires selling first and selling fast. When it comes to simple consumer product ideas, speed to market is more valuable than a patent.
In 2019, it took the United States Patent & Trademark Office an average of two years to grant a patent. The lifespan of most consumer products today is 18 months to 24 months.
Waiting for a patent to issue before getting in the game doesn’t make sense. The market could very well pass you by.
So, what can you do to protect your product idea? Be smart, work hard, and make haste!
Here’s the great news: No one copies a product that isn’t selling well. So, you have a little time to plan ahead.
Here are effective and practical ways of protecting your ownership of your creativity.
License your product idea to a market leader. This is the best protection you can possibly have today. Ideally this company has great distribution and relationships with major retailers. Now it’s all about speed.
Be the original. From my perspective, fighting in court and at the USPTO is a waste of time, energy, and money. Take your battle to social media instead. Build a network of raging fans — they will help you police copycats. Support your fellow entrepreneurs and the inventing community at large. Get as much publicity for your product as you can. This will not only help your licensee sell more product, it will cement your ownership.
File intellectual property that truly has value to potential licensees and others. Don’t file patent applications out of fear. Make sure to thoroughly consider and address potential workarounds and variations. And please, know how to manufacture your product at a price point that is extremely competitive. Yes, you’re an inventor, but you need to think like an entrepreneur.
Prolong the life of your product with line extensions. Smart product developers stay relevant by expanding on their initial idea with new, complementary products and versions.
Build your own relationships with major retailers. Never threaten anyone! Instead, befriend and let these retailers know you are the original inventor.
Stay ahead of the competition by continuing to innovate. Never stop looking ahead. In addition to filing provisional patent applications, consider design patents, copyright, and trademarks.
Patents can be useful tools for furthering your business goals, be it securing a licensing agreement or funding for your startup. Their value has nothing to do with stopping anyone.