The Quid Pro Quo – How Bad Patents Can Harm A Company
New inventors are often unaware of the quid pro quo that is fundamental to the patent system.
The inventors must show the world their innermost secrets of how to make or use their invention. In exchange, the government grants a limited right in the form of a patent.
Getting Patents Fast.
Most of the major patent offices of the world, including the USPTO, have programs for getting patents fast. A typical patent may move through the system over several years, and 3-7 years is pretty typical. However, these expedited programs can get the patent very quickly, sometimes within 9-12 months.
The USPTO has three systems for expediting patents. The best system is called the Patent Prosecution Highway. The next preferred system is Track One, and the system called Accelerated Examination is so hopelessly crippled that nobody should ever use it.
Avoid Wishful Thinking Patents
Many patents are filed with “wishful thinking”. This occurs when someone wants protection on a product but does not realize what the scope of the invention will actually be.
For example, let’s say a company is making a fully automated, table top ice cream machine. Consumers will load up the machine with various ingredients, and the machine will process the ingredients into a fabulous frozen dessert. The CEO usually tells the patent attorney, “I want a patent on this.” And the patent attorney goes to work.
Focus on Patent Quality First, Then Quantity
It has been said that patents are like hyenas. One hyena can be easily defeated, but not a whole pack.
When doing multi-million dollar patent negotiations, patent quantity is often more important than quality. A large number of patents, which may be 10 patents in some cases or 100 patents in others, have an air of invincibility. Maybe a competitor could try to take down one or two patents that might be infringed, but when there are too many patents, the cost equation goes the other way and it is easier to negotiate and settle.
A Repeatable Due Diligence Analysis Prior to Filing
The decision to file a patent is an investment that – if it pays off – will have a huge benefit to a company. The best way to ensure that the decision process is well thought out is to have a due diligence process that helps make the decision less emotional and more quantifiable.
The due diligence is a roadmap for the business case of the patent and needs to follow the patent through its lifecycle.
The due diligence analysis should consolidate and organize the thought processes and data underlying the business decision for a patent.
One piece of the analysis can include the invention checklist, which is available here.