There are a lot of misconceptions or ‘myths’ about patents which have discovered their method into common discourse amongst enterprise leaders and know-how managers, starting from what sort of improvements are patentable, to how essential it’s to personal and shield your mental property (IP) utilizing patents. These myths embrace “You may’t patent software program”, “I’ve a patent on my product so I’m allowed to promote my product” and “It’s best to solely get patents if you’re keen (and might afford) to take somebody to court docket in the event that they infringe them”. Sadly, many companies fail to safe patent rights on priceless mental property or fail to establish, acknowledge and mitigate patent-related dangers partially as a result of they’re counting on these myths. This may occasionally result in missed alternatives or worse, end in elevated legal responsibility arising from patent infringement disputes.
On this article we’ll deal with 5 widespread myths about patents to assist enterprise leaders and know-how managers higher separate truth from fiction and make knowledgeable selections to guard investments made in innovation.
- Patent Myth #1: If I obtain a patent for my invention, I can automatically commercialize products and/or services incorporating my invention without worrying about patents owned by others.
- Patent Myth #2: You need to have a working prototype before filing for patent protection.
- Patent Myth #3: A patent is only worth the investment if you are willing, and have an allocated budget, to sue those that infringe your patents.
- Patent Myth #4: “Software” is not patentable.
- Patent Myth #5: Some technology sectors evolve so quickly that by the time you would get a patent on your innovation, it will be obsolete.
The Myths vs The Details
Delusion #1: If I receive a patent for my invention, I can mechanically commercialize merchandise and/or companies incorporating my invention with out worrying about patents owned by others.
The Details: A patent solely permits the proprietor to stop others from utilizing the patented invention with out consent however doesn’t permit the patent proprietor to utilize the invention in relation to earlier patents owned by others.
Acquiring a patent doesn’t imply that services or products incorporating the invention aren’t restricted by earlier patents owned by others. A patent solely means that you can stop others from performing what the particular claims of your patent cowl. To evaluate whether or not training your invention falls throughout the scope of patents owned by others, and thus whether or not you’re free to make, use and/or promote your services or products, it is very important search earlier patents to get a way of what patents are at the moment in drive that could be related to your deliberate business actions.
For instance, a brand new patent for an in-line skate with a brake, assuming that the novelty of the invention lies within the presence of the brake within the in-line skate, would entitle its proprietor to cease others from making in-line skates with brakes. However, if another person holds a sound earlier patent on a primary in-line skate, the proprietor of the brand new patent for an in-line skate with a brake wouldn’t be entitled to make and promote a skate with a brake with out first acquiring a license to that earlier patent. In different phrases: the target of a patent is just to help you stop others from utilizing your invention, as outlined by the particular claims in your patent, with out your consent; it doesn’t help you use your invention in relation to patents owned by others with out their consent.
What this implies is that, even if in case you have a number of patents that cowl features of your business product, it’s nonetheless essential to carry out a patent search to get an understanding of what patents owned by others may current an infringement danger. Ideally, this search can be carried out early on, for instance throughout the growth section of your product, to establish potential dangers earlier than important investments are made. In some conditions, this may occasionally additionally imply proactively managing these dangers, which will be achieved by way of quite a lot of means – for instance by designing across the related patents owned by others, in search of a license to make use of sure patents, and probably acquiring a authorized non-infringement opinion. Such a train, which can be carried out in a number of steps and at totally different moments, is usually known as a “Freedom-to-Function (FTO)” or a “Market Clearance” evaluation.
Understanding the relevance of a patent requires deciphering the language of its claims and, until you or a member of your crew has expertise in studying and deciphering patent claims, it’s often advisable to retain a professional patent agent or patent lawyer to supply steering throughout this course of.
Delusion #2: It is advisable have a working prototype earlier than submitting for patent safety.
The Details: There isn’t any authorized requirement that there be a working prototype of your innovation earlier than submitting for patent safety. Nonetheless, in “first-to-file” patent programs, whoever recordsdata an utility on an innovation first wins within the race to acquire the patent on that innovation. Time is usually of the essence!
To pursue patent safety, you solely must have described your invention in ample element to permit somebody expert within the area of your know-how (a.ok.a. ‘an individual expert within the artwork’) to have the ability to follow it. Which means, as long as you may put together an applicable description of your invention, you may file an utility for a patent effectively upfront of constructing an precise prototype.
Additionally, in primarily all international locations which have native legal guidelines regulating the granting or enforcement of patents, patents are granted to the primary particular person to file an utility on an innovation, not the primary particular person to invent. For that cause, getting a patent utility filed early is usually crucial in extremely progressive fields, significantly the place a number of gamers are actively working to seek out technical options to the identical drawback.
In aggressive fields the place know-how is essential and the extent of patenting exercise is excessive, delaying the submitting of an utility can have pricey penalties. By ready, you not solely danger failing to safe broad patent safety, however you may additionally really be prevented from commercializing your innovation ought to others in your area file patent functions on know-how much like yours earlier than you file your utility or disclose your innovation.
Because of this, it is very important pay attention to the extent of patent exercise and tradition of patent safety of the industries and markets you’re working in and plan accordingly to compete commercially whereas limiting publicity to patent-related dangers.
Delusion #3: A patent is just well worth the funding if you’re keen, and have an allotted price range, to sue those who infringe your patents.
The Details: Patents are a strategic asset with business worth {that a} enterprise can use as leverage when participating with buyers, staff, contractors, suppliers and different enterprise companions.
Whereas litigation can in some instances play a strategic function in supporting enterprise targets, patents and different IP rights have business worth and lots of potential makes use of past enforcement by way of litigation. Such makes use of embrace attracting capital for development from buyers, offering collateral for securing debt financing, enhancing an organization’s stability sheet and valuation, establishing belief and confidence from patrons and customers, facilitating collaborations with companions and/or offering a basis for licensing, co-existence and/or cross-licensing agreements, amongst different examples.
One essential aim and advantage of securing patent safety is to assist extra clearly set up boundaries of possession of mental property for know-how owned by the enterprise relative to that owned by different stakeholders, together with staff, contractors, enterprise companions and suppliers. Thus not solely does submitting for patent safety assist safe worth related to the know-how in favour of the patent proprietor, however doing so together with agreements and contracts comprising appropriate IP provisions usually reduces the chance of possession disputes afterward when the know-how has matured and has acquired some stage of business success.
As well as, having a strong patent portfolio in a business house can act as a deterrent to others in search of to implement their very own patents in that very same business house and thus could scale back the chance of you being dragged right into a pricey litigation at a future time limit. Whereas securing patent safety does contain some bills, these are minimal when in comparison with the price of a authorized dispute.
Delusion #4: “Software program” isn’t patentable.
The Details: Whereas precise software program code per se is protectable by copyright and never by patents, software-implemented performance will be protected by a patent, supplied it’s new, non-obvious, helpful and in any other case compliant with the opposite authorized necessities.
For greater than 30 years, there was debate on the query of whether or not software program is patentable, and the conclusion is obvious: software program improvements are patentable. Whereas some factors of debate surrounding software program and patents stay, these are likely to relate much less to the broader query of “is software program patentable?” and as a substitute give attention to extra particular points comparable to “what is required for a software-implemented invention to be thought-about patentable?”
Pc software program performs a key function in lots of priceless improvements. Subsequently, understanding what will be thought-about eligible for patenting, and what can not is essential. Whereas precise software program code per se is protectable by copyright and never by patents, software-implemented performance will be protected by a patent, supplied it’s new, non-obvious, helpful and in any other case complies with the opposite authorized necessities. Examples of software-implemented options that could be appropriate candidates for patent safety embrace: processes used to deal with a particular drawback, some performance supplied by way of a Graphical Consumer Interface (together with e-commerce functions), AI-based options to sensible issues, management programs and different computer-implemented options. Conversely, easy mathematical formulation and algorithms that aren’t utilized to deal with a sensible drawback can’t be patented.
Delusion #5: Some know-how sectors evolve so rapidly that by the point you’ll get a patent in your innovation, it is going to be out of date.
The Details: Choosing the proper progressive options to guard, specializing in enterprise/person advantages, which have longer endurance than very particular technical options, and together with within the patent doc descriptions of other realizations and cheap predictions as to how the know-how could fluctuate/evolve, are key to “future-proofing” your patent portfolio.
Whereas, in some sectors, know-how evolves rapidly and new product releases occur each few months, the underlying drawback and the novel answer supplied by the know-how usually stay comparatively fixed throughout a number of releases.
Essential questions you should ask when considering patent safety embrace: (1) What’s the drawback the know-how is addressing, (2) What is going to the know-how appear like sooner or later with a purpose to proceed fixing the issue, and (3) How can I articulate my innovation in broad “drawback/answer” phrases? The solutions to those questions will assist information you to decide on what to hunt patent safety for and allow you to put together and search a patent extra prone to stay related by way of the assorted embodiments of the invention sooner or later.
Choosing the proper progressive options to guard, specializing in enterprise/person advantages, which have longer endurance than very particular technical options, and together with within the patent doc descriptions of other realizations and cheap predictions as to how the know-how could fluctuate/evolve, are key to “future-proofing” your patent portfolio. For instance, within the case of software program, whereas a given software program launch could solely embrace a restricted variety of options because of programming time and useful resource constraints, the design crew has sometimes already thought of extra options that will probably be included in future releases. Since, as talked about above, a working prototype isn’t wanted to file a patent utility, options of each a present software program launch, in addition to potential future releases (together with options which have solely made it so far as the drafting board), will be included in the identical patent utility supplied an applicable description will be ready.
Whereas working with a professional patent agent is advisable in all instances when drafting a patent utility, for improvements in rapidly evolving sectors, working with a patent skilled who understands your know-how and is able to working with you to extrapolate and to account for future variations can play an particularly essential function in extending your patent’s helpful life.
Conclusion: Having a transparent understanding of patent information is essential
Enterprise leaders and different resolution makers in technology-rich sectors want to concentrate on the information associated to patents and of the strategic worth of mental property to make knowledgeable business selections. Counting on patent myths can lead to missed alternatives and, now and again, elevated legal responsibility when patent-related dangers aren’t suitably managed.