Patents and the Quid Pro Quo – How Bad Patents Can Harm A Company

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.

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Getting Patents Fast

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.

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Avoid Wishful Patents

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.

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Focus on Patent Quality First, Then Quantity

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.

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Patent Due Diligence – Before Filing

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.

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Startup Company Valuation Goes Up With Patents

Startup Company Valuation Goes Up With Patents

High quality, investment-grade patents can have spectacular impact on a startup’s valuation.  In the early stages of a company, especially when technology risks and market risks abound, the patents may be the most valuable asset the company has.

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Patents Need To Have Real Business Value

Patents need to have real business value.

Patents should align with the business they are designed to protect.  They need to capture the business’s competitive advantage, period.  When they don’t accomplish this, the patents have no meaningful value.

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Patents Should Be Easy To Read

Patents should be understandable and easy to read.

It takes far more effort to write a clear, clean, direct, and comprehensible patent application than a giant, incomprehensible “pile of words”.

  • Understandable and readable patents get better examination from the USPTO, which means those patents are much more “legitimate” than those that are poorly written.  Examiners find the best prior art, and feel confident allowing a case when they understand the invention.
  • Understandable and readable patents get better treatment when used to negotiate in a business context, such as when negotiating with an infringer.  When the patent is pushed across the table to an infringer, the infringer should read it, understand it, and say, “Oh no.  I see how we infringe.”
  • Understandable and readable patents get better results when challenged, either in court or through the any type of review process, including Inter Partes Review.  Well written patents withstand reexamination, and the judges and juries – normal laypersons – render better decisions when they understand the patents.

This is an excerpt from “Investing in Patents” by Russ Krajec.

Investing In Patents is available at

Write Your Own Patent?

Should You Write Your Own Patent Application?

Writing your own patent is sometimes worth considering, especially for relatively low value inventions where you do not expect to enforce, sell, or litigate the patent.

Often, I consult with inventors who are considering writing their own patents or those who have already done so. In general, these pro se patentees are looking to save some very valuable cash and are willing to invest their time and effort into learning how to write and file a patent.

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Inventors Can Be Difficult

Inventors Can Be Their Own Worst Enemies

There are times when an inventor can be very myopic. There was one inventor several years ago who insisted on very specific definitions of his invention and would not permit any variation from his vision of the invention. The inventor would not consider any expansive definitions or alternatives to his idea. He was so fixated on his little view of the invention that he could not see how it could possibly be expanded.

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