By Ethan Adams
There are a lot of opinions out there about whether an entrepreneur should try to patent an idea before making it public. Patents can be expensive, cumbersome, and downright confusing, and yet they offer one of the only methods of formal protection for an idea.
Entrepreneurs face a frustrating dilemma when it comes to protecting their intellectual property (IP). In order to grow, they need advice and mentoring–and potentially funding. In order to receive those, they will need to share their idea. A lot.
Traditional knowledge says that the easy solution to protecting one’s intellectual property is to file for a patent. Others doubt the efficacy of a patent and the expenses required to obtain one. In either case, you will need to ask around and do some dedicated research to determine if your product would benefit from an official patent. But before you dive in, here are three cautionary things to know before you file for a patent.
1. A patent might not even “protect” your idea.
Though the United States Patent & Trademark Office exists in an effort to protect innovation, it brings its own limitations of how well it can do so. Harris A. Wolin, intellectual property attorney, says that “protection” by patent is far from a guarantee.
“If you’re in a crowded field, the ability to get meaningful protection might be slim,” Wolin says. “If you have a breakthrough invention without historical precedent, your ability to get broader patent protection is much greater.”
In other words, not only do you likely not need to seek a patent for commonplace “innovations” like a new mobile app, but you probably would not receive it anyway.
Another concern regards what information is actually protectable in a patent. Even provisional patents are part of the public record (i.e. anyone can read up on your brilliant idea), and allowing an inexperienced or dishonest attorney to file your patent too broadly or too specifically can offer little real protection when brought before a judge.
Therefore, the patent process can be valuable and essential for intellectual property rights, but achieves something still quite far from total immunity.
2. Receiving a patent is the beginning, not the end.
Intuition for some reason tends to lead people to assume that once a patent is awarded to an innovation, the story ends there. In other words, a patent means the company can finally focus on “more important” tasks. Unfortunately, this impression is often misguided.
In reality, a patent is only about as secure as the financial support present to back it up. You might have the exclusive right to a certain innovation through a patent, but it can take an inordinate amount of legal fees to protect it in court (if you even can prove it).
Furthermore, the patent process continues on past the award date. Patents require routine legal “maintenance” over the years–and that doesn’t even address what happens if your company pivots to a slightly different product, requiring you to start the process over again!
“The USPTO [United States Patent & Trademark Office] would be a much better citizen to the startup community if it educated people on the entire lifecycle of a patent, not just getting the patent awarded,” says Russ Krajec of IP Education. “When you consider that the USPTO can make more fees from patent maintenance than from the filing/prosecution phase, the USPTO’s interests would be better served by focusing their education on what happens after the patent is granted, not before.”
For a startup, receiving a patent is only the beginning of a much longer patent cycle.
3. Most entrepreneurs don’t need a patent at the beginning.
You may recall the famous Thomas Edison quote: “Genius is one percent inspiration, ninety nine percent perspiration.” The word “genius” applies as much to Edison’s entrepreneurial ambitions as his inventions, and this 99-1 Rule can even be broken down further (I call it the 1-14-15-20-20-30 Rule) to account for some of the intangible aspects of innovation protection like pride, motivation, positioning, and more.
Basically, the startup world tends to be full of two types of people: talkers and doers. Anybody can talk a big game as much as they want (including you) about a new idea, but not a single word matters unless they act on it. This is what will separate you from whoever you’re concerned might steal your idea. They might like the idea, see the opportunity, and even be positioned to act, but the odds of them doing so are slim. Why? Someone with the brains and resources to birth an entirely new company on a whim (in addition to whatever they already are doing) probably doesn’t have the time. Someone with the time probably doesn’t have the brains or resources.
So what can you do to protect your idea? Simple: guard your trade secrets–your secret sauce. There are a large number of enormous companies who don’t hold patents over their multi-million-dollar products (Coca-Cola is one of them). In fact, a 2013 study found that only about 10% of the most “important inventions” actually hold patents. “For most innovations,” the study concludes, “the innovating companies rely on trade secrecy, lead time/first to market advantages, or other strategies, instead of on the patent system.” So if you started out assuming that any significant innovation requires a patent–think again.
Things have changed
The story used to be different. Those who grew up reading novels or history books about the great innovators of the Guilded Age like Edison, Tesla, and Ford read about “patent races.” But things don’t work that way anymore. In this modern world of rapid technological innovation, Eric Ries (author of The Lean Startup) says “The big question of our time is not Can it be built? but Should it be built?”
It may sting a little bit to be told that you are not the most brilliant mind in the world, nor are you the most capable. What you are, however, is the most inspired to make your idea a reality, and no one can take that from you.
Ethan Adams is Manager of Startup Development at Future Founders.
Hann, C. (2013, May 22). How to Know If You Need to Patent Your Product. From https://www.entrepreneur.com/article/226711
Kinsella, S. (2013, December 2). Study: Most Important Innovations Are Not Patented. From http://infojustice.org/archives/31509
Krajec, R. (2016, December 29). Patent Myths. From http://ip.education/patent-myths/?gclid=COz-__Kt3tECFQYdaQodOqIKDQ
Mitchell, T. (2011, February 28). Shh!! It’s a Secret!: Coca-Cola’s Recipe Revealed? From http://ipjournal.law.wfu.edu/2011/02/shh-its-a-secret-coca-colas-recipe-revealed/
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