We’ll close out this series by debunking patent myths 5, 6, and 7, as well as offer some parting words to help you avoid falling for any myths not covered here.

Patent Myth #5 – “A patent protects what’s in the drawings in the application.”

No, it doesn’t – a patent protects what is in the claims of an application. The drawings you include with your patent application are only there to give visual examples of the invention as it is spelled out in your written claims. If there is any discrepancy between what is written in your claims and shown in your drawings, only what is written in your claims is protected.

If it’s not in the claims, it’s not protected.

The claims may cover more or less than what is drawn. Obviously, this means it is in your best interest to put as much in the claims as you can, versus the drawings. However, correctly interpreting what, exactly, the claims cover can be quite difficult in and of itself. The more concerned you are about this, the more sense it makes to spend the money and hire an experienced patent attorney to weigh in on the matter.

Patent Myth #6 – “Patenting something means I, and I alone, can make and sell my invention.”

Wrong. Refer back to Part 1 of this series, where the official USPTO definition of a patent states:

“What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention.” [emphasis added]

Therefore, the exact opposite of this myth is true. And remember: you just learned that only the claims made in a patent are protected. This means that if someone else already has a patent with broader claims that encompass your invention, they have the right to stop you from making, using, or selling your invention.

(This underscores the importance of doing a thorough patent search before patenting anything!)

Also, remember that while you as a patent holder have the right to stop others from making, using, or selling your invention, the burden for stopping them is squarely on your shoulders. The USPTO does not proactively or automatically stop such infringements.

Patent Myth #7 – “Starting with a provisional patent is costlier than starting with a non-provisional patent.”

Hardly. In fact, the main benefit of a provisional patent is that it costs far less than a non-provisional (also called a utility) patent and gives you 12 months to gauge interest in the patent before spending the extra thousands of dollars for full, non-provisional patent protection.

Virtually all inventors should probably start out with a provisional patent and only go further than that once the patent proves it has legs. It seems like the only people saying a provisional patent is costlier are patent attorneys. While patent attorneys as a group are no more or less dishonest than other people (or other lawyers), it’s in their immediate economic interest for you to get a full, non-provisional patent. It equates to higher fees for them.

Here is an About.com webpage discussing both the advantages and disadvantages of provisional patents. You will most likely conclude that the advantages far outweigh any disadvantages.

There is one valid criticism of provisional patents, however, and that is that you will not be able to add anything to your drawings or claims after the fact. That is, the drawings and claims you include in your provisional patent application will become your non-provisional patent if you decide to get one.

For this reason, it is important to make sure everything you want to be protected is included in your provisional patent application.

By this point, you should be much better able to see through the various patent myths out there and recognize them for what they truly are. However, there will likely be more myths in the future, limited only by human imagination and naiveté. So in closing, here are some general rules to keep in mind when evaluating patent advice:

1) Are there potential conflicts of interest with the person giving the advice? (ie, are they trying to sell you anything?) This doesn’t mean everyone with something to sell is lying to you to make a buck. It simply means that they might be, and that you should be on the lookout for obvious signs of it.

2) Does it sound too good to be true? How nice it would be if getting a patent was as simple as jotting down an idea and owning all rights to it. Alas, that is not true, as you know now, and neither are most other things that sound too good to be true. This old saying will protect you from 9 out of 10 myths on any subject, not just patents.

3) Where’s the evidence? Nothing is easier than to theorize about a subject and speak in glib generalities. Unfortunately, this is rarely enough to achieve your goals or steer you in the right direction. In this series, we’ve repeatedly cited outside sources like the US Patent & Trademark Office, reputable patent attorneys, and impartial comparisons on websites like About.com. You should demand the same attention to evidence and detail in any patent information source you use.