Careers
Why would someone, or some business, want to file for or ultimately obtain a patent? The short answer is that there are many different answers and reasonings, and inventors, entrepreneurs and businesses should make a balanced assessment on an ongoing basis.
What a patent provides is not a right to do something or have something. Rather, a patent is an exclusionary right that prohibits others from doing something. In other words, instead of giving someone a right to do something, a patent provides the patent owner the right to enforce (often through the threat of a lawsuit) the ability to keep (or prohibit) others from making, using, selling, importing or exporting something.
The processes behind how a patent is granted often appears mysterious and sometimes overwhelming to those outside of the patent world. In reality, it’s often more of an assessment of give and take between two parties, the inventor and the United States, represented by a federal employee, the patent examiner. Once an application for a patent is filed, it is assigned to a patent examiner to assess if a patent should, or should not, be granted. Essentially, the job of the examiner is to weigh the legal requirements of the patent system against the inventive (and claimed) material from the inventor. That’s to determine whether the person (or business behind the person) pursuing a patent has provided enough (and enough of the right stuff) inventive detail to be granted an exclusive right to the claimed technology.
One key to remember is that this examination step is only a first stage in a comprehensive patent strategy. Obtaining a granted patent may be all that one desires. Sometimes, inventors are only interested in having a patent, for example, to frame as wall art. In that case, the first stage will be sufficient. Alternatively, enforcing the rights that are granted with a patent may invoke additional stages. Enforcement, by way of Cease and Desist letters or litigation, can lead others to challenge the validity of the patent either in the Federal Court system or at the U.S. Patent Office (USPTO). These additional stages will undoubtedly bring about additional costs, and the patent strategy of a business plan should anticipate these costs. While costs associated with the first step of obtaining a patent is necessary, additional steps may also be necessary based on the answer to the question of why, and what one wants to do with a patent once obtained.
Focusing in on that first step of obtaining a patent should include a consideration of how much to pay for a patent. Unfortunately, there is often no easy answer to this question as every invention and strategy is different.
Having or even pursuing a patent can serve as a signal of perceived exclusivity. Oftentimes, doing enough to establish ‘patent pending’ is sufficient to alert the market that a business is serious about protecting their intellectual property. An issued patent provides tremendous value to its owner and serve as a symbol of exclusivity, accomplishment or capability. Patents may also be a signal to investors that the concept has value, and investors should consider investing with the patent holder (or sometimes the applicant). For businesses already engaged in a market sector, patents may serve as a symbolic shield in a market area, making it difficult for competitors to enforce other patents or technology in a particular area. Further, depending on strategy, patents may also serve as an offensive tool or symbolic weapon to stake out new market areas.
It is important to note that, while a patent strategy can be somewhat tailored to an applicant’s business intentions and goals, it nevertheless requires a significant monetary investment. However, in exchange for the exclusive monopoly granted to the patent holder by the U.S. government, obtaining a patent is oftentimes one of the best strategic decisions businesses or inventors make to obtain market share.
We’re here to help tailor a patent strategy that fits with your business, market and most of all, long-term intentions.
Ed Caja is an attorney at Walter Haverfield who focuses his practice on intellectual property law. He can be reached at ecaja@walterhav.com or at 216-619-7871.