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The Joy of Patenting, Part 2: Why Patent?

Every time someone asks me “Why?”, I think of the movie Animal House.

Why Flounder?

‘BURP!’ Why not?

I don’t know why that response strikes me the way it does however to this day, it still makes me laugh. John Belushi was great at one line, careless comebacks.

Although your interest in patenting might be more serious than naming a fraternity pledge, you’ve got to ask yourself a question, “Do I feel lucky?”

“Well do ya punk?”

OK that’s it for the movie flashbacks. That is however one of my favorite Clint Eastwood series of lines. As for patenting, there really are reasons for and against patenting.

I am writing this blog in regards to the question, “Why, patent?” The angle that I am taking is from my own personal patent writing experience for my own inventions. I feel this angle best represents my Planet Analog audience and their similar dilemmas involving personal inventions.

Because I am about to write about a law based subject I must state that I am not a lawyer or patent agent nor am I giving any legal advice. I’m simply writing about my observations and experiences as an inventor. I have also searched patents for myself and as a freelancer. I have some experiences to share there as well.

My desire to patent was to protect my idea so that I could monetize it without fear of competition. Protection to me means that the patent office has a registered time and description of my idea. In the United States, a ‘first to file’ country, the date is very important to me as it gives me a reference point in the event I have to prove I had my idea before any others. Once I file, I feel that I can begin to pursue production or selling the idea publically without fear of it being used without my permission. This temporary protection is why I use a provisional patent before submitting a utility patent. Allow me to explain.

A provisional patent protects me for a year. As I understand it, the idea is protected until the first year anniversary of its submittal to the patent office; otherwise known as the filing date. Within that year, I will shop the idea around or begin pursuing a business arrangement to go into production. About the tenth month I’ll have a decision to make as to whether to pursue the patent or abandon it. If I don’t file the utility within one year of filing the provisional patent, I will consider the idea to no longer be mine.

I like provisional patents because they allow me to file for a low fee while not having to write a full blown, highly structured patent with detailed figures. I create a general description with hand drawn figures. Again I’m not going to stick my neck out by posting legal information so I’d suggest you investigate filing fees on the United States Patent and Trade Office USPTO website.

I don’t like provisional patents because they start the clock ticking for me to file the patent within a year. This will bring added cost and complexity to my life. Also, alerting companies to my idea might make them wait and “starve me out” when the one year of protection ends. This is a common occurrence that I’ve seen when representing startup companies. Once I file the provisional patent, I must financially be ready to take the next step in filing a utility patent. This can result in costs to draft the patent in addition to filing fees. Those costs appear to be minor when compared to paying attorney fees for Office Actions that result if the patent is rejected for any reason. Further costs could be incurred in defending the patent against infringement. Therefore I might be better off selling the patent within that first year and moving on to save further costs and efforts. This decision is a constant struggle that I face.

Some ideas I wouldn’t patent. I’ve seen them referred to as “trade secrets” such as the formula for Coca Cola or the recipe for Kentucky Fried Chicken. I would view these ideas as best kept private. I don’t see the value in making them public.

Regardless of how accessible a patent is to the public, I always view patents in a manner similar to anything I post on the internet. Once it’s out there, it is public domain that is available to all. This weighs heavy on my decision as what to file and when to file it.

In this law driven country in which I live, I often hear one more popular movie line ringing in my head, “Can and will be used against you in a court of law.”

Yikes!

That’s something to think about when asking yourself, “Why Patent?” or “Why post it on the internet?”

References

  1. filing fees
  2. USPTO website

3 comments on “The Joy of Patenting, Part 2: Why Patent?

  1. vbiancomano
    May 30, 2016

    Patent law remains the same sticky wicket it's been since the idea of patents emerged. Even the experts are short-circuited at times by court decisions that boggle the mind (see “Whose patent is this, anyway?” (24 Dec 2007) and “Whose patent is this, anyway?—The Interview” (25 Dec 2007), both in EE Times). In short, there's historically been no consensus on an international standard by the Europeans, Japan, and the US on patents when it comes to who is protected against whom or what. Their business models and attitudes differ, so not surprisingly, “Patent Reform” has had a rocky road that was still filled with potholes the last I heard in 2013. A patent affords certain advantages. But in general, not a universal edge. The potential patent holder should be well aware of this and a host of other considerations before proceeding with a claim. Sometimes, the effort may not be worth it.

  2. D Feucht
    May 30, 2016

    The American with the most patents, Thomas A. Edison, said near the end of his career that if he had it to do all over again, he would not patent a single thing. It is mostly a device for employing lawyers.

    The patent, as a constitutionally-embedded institution, is yet another “good idea” on the surface but achieves the opposite of what is intended. Its basic flaw is that nobody owns ideas; they are not property. If you have an idea, I can have it too and we both can have it. For property, “this is mine, that is thine” applies. (Look it up in Black's Law Dictionary, 6th Edition.)

    “Intellectual property” is like “square circles”; it is an oxymoron. Most cultures, Asian included, have known this, but have reluctantly been swept into this bad idea from foreign influences. To me, IP stands for information product .

    There are many problems with patents. Only novel ideas can be patented yet who is to say what is novel? What is novel to an idiot is obvious to a genius. And how much must an idea differ from another to be different? What is the same to one is different to another. Patents involve law, which gives government a nexus for control of the use of ideas. What constitutes public disclosure? If it is defined by law, then one must be subject to a legal procdure in order to freely use one's own ideas without the risk that someone else will patent it upon discovery. If I publish and thus disclose my idea in an obscure yet publicly-accessible place, it that a sufficient disclosure? Or must I seek to publish it in a government-approved or recognized source?

    Patents discourage innovation. Without patents, ideas can be freely discussed, but with them, ideas are subject to secrecy before patent disclosure. The patent relates ideas to wealth, creating a protective milieu for ideas which otherwise are open and free.

    This list goes on, but to end it with a last objection, the patent office putatively decides what reality is, as they have suppressed patents for genuine inventions.

    Patents are simply “unamerican”. They teach behavior contrary to established institutions such as schools, in which the free exchange of knowledge is encouraged as well as its use, which is often the purpose of the exchange.

     

     

  3. Effective-Technical-Writing dot com
    May 31, 2016

    I am very grateful for the feedback.  It is true that patents are a highly debated subject.  Keep your views coming.  Realize that as a patent writer and editor who sells services to firms, I am bound to limit the content to my personal experiences.  I'm not on either side of the fence for the patents I represent on behalf of others.  For my personal patents, I take them on a case by case basis as to what I choose to disclose and that which I keep private.  No comment as to my faith in the system.  I have yet to go down that road on a personal journey so I have no data to relate to.

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