Failure to Understand When You Should and Shouldn't Get a Patent

What does this mean?

Patents give the owner a limited monopoly over their inventions: for a limited period of time, only they can make, reproduce, sell, distribute their invention or its equivalent, even if somebody else was able to independently build by himself. This is the best way to protect your invention when it comes to those can be reverse-engineered.

But there are some instances when it’s not smart to get a patent. One is where there’s only a very slim chance that your product can be reverse-engineered it’s better to maintain it as a trade secret. The other is when your product is not patentable.

Does this apply to me?

If you have an invention in the form of a process, machine, articles of manufacture, composition of matter, or any new and useful improvement on any of those, then yes.

Why is making this mistake going to harm my business?

If you don’t patent a product and bring it to market, you won’t be able to stop people from taking it apart and building copies from it. The overall effect being you covering all the costs for developing the product but then in the end other people can use what you developed and compete with you, directly taking profit that should have accrued to you.

On the other hand, if you patent something that you can very well keep as a trade secret, you reduce what should have been perpetual protection and consequent monopoly to the term of patents which is 15 or 20 years.

Lastly, getting a patent is not cheap, it’s not just the cost of the application itself that you have to pay for. You also incur costs in preparing the application itself when you consult with patent attorneys, hire professionals to prepare your application or make the necessary drawings. None of which is refundable.

You could avoid this by:

Getting a good understanding of what a patent is, what you get from it and what you don’t get. You should also weigh patents against other IP to check if a patent is really what you need. Check out our IP overview cheatsheet to get a better distinction. If you’re torn specifically between patent vs trade secret, have a look at Avoidable Mistake 45 for more insight on the distinction.


Example:

Will got a great idea for an innovative new sales process, but one that--without Will’s knowledge--was quite similar to dozens of other sales processes. Will had just inherited $10,000 and decided to spend it all on a rookie patent attorney to help him patent his process. The patent process found that there was nothing “novel” about Will’s idea, and even worse, by the time Will got a decision back from patent office, Will had already substantially changed his process learning that it had considerable flaws.

Will made the mistake of jumping the gun on a patent when in the beginning, most likely protection as a trade secret would’ve been much better and more cost-effective for Will and many others just starting a business.

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