Patent Facts & Fiction – Part 3
| A 3-part series debunking the most widespread and misleading myths about patents. |
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.
Patent Facts & Fiction – Part 2
| 3-part series debunking the most widespread and misleading myths about patents. |
Part 1 of this series began by introducing the official definition of what a patent is and laying out 7 widespread but dangerous patent myths. We will now begin to debunk each one.
Patent Myth #1 – “You can patent an idea.”
No, you can’t. No one can, because patents do not protect ideas. They protect, in the words of patent lawyer and IPWatchdog.com founder Eugene Quinn, “identifiable embodiments” of ideas.
| “Unfortunately, despite what you may have heard, there is no effective way to protect an idea through intellectual property law. Copyright protects expression and patent law protects inventions, and neither protect ideas. In both cases the idea is the first critical step, but without some identifiable embodiment of the idea there can be no intellectual property protection. That does not mean that you should give up when you only have an idea, but it does mean that you ought to proceed to flush out your idea to the point where it is concrete enough to be more than what the law would call a “mere idea.” The moral of the story is that ideas alone cannot be protected..” – Can Ideas Be Protected? [emphasis added] |
In other words, you have to actually create something based on the idea. That’s what you can patent. This might sound obvious now that it’s been explained, but it’s astonishing how many people believe they can scribble down some idea or concept they thought up and get a patent on it.
One big reason this myth gets so much mileage is invention scam artists. It is easier for them to sell products and services to naïve inventors if the inventors believe getting a patent is as simple as thinking of an idea. It’s a much harder sell when you add “but you actually have to invent something based on the idea first.”
Nevertheless, that is exactly what you have to do. So ignore anyone who tells you otherwise.
Patent Myth #2 – “The US Patent & Trademark Office will stop people from infringing on my patent.”
No, they won’t – unless you bring a lawsuit against the person or company you believe has infringed on your patent. Only once you prove that someone has indeed infringed on the claims made in your patent will the US Patent & Trademark Office get an injunction issued against the infringer forcing him to stop.
You may be asking “well how hard can that be?” Unfortunately, it’s impossible to give a one-size-fits-all answer to that question. It depends on many things, such as how complex your patent is and how flagrant the infringer’s violation of it is. If your patent is relatively simple, an experienced patent attorney might have an easy time proving that it was infringed upon.
On the other hand, if your patent is relatively complex, even the best patent attorney might take years to successfully prove infringement and get an injunction issued to stop it. Only the patent attorney you work with can accurately forecast how long that will take.
Nevertheless, it is important to know that the US Patent & Trademark Office is in no way “looking out for you” in the sense of proactively or automatically stopping people from infringing on your patents. They will only act when you demonstrate an infringement via the courts.
Patent Myth #3 – “Patents are intrinsically valuable.”
Refer back to the US Patent & Trademark Office’s official definition. The pertinent part for this myth says “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.” What does this mean for the idea that patents are intrinsically valuable?
It means that they are not intrinsically valuable. If a patent represents nothing but the right to stop others from making, using, or selling the invention, it logically follows that the patent is only valuable if other people want to make, use, or sell the invention. That is, if it is commercially viable.
So you see, it is possible for a patent to have no value (an invention nobody wants or needs), some value (an invention some people want or need), or high value (an invention lots of people want or need.) The important thing to remember is that a patent’s value hinges on whether people want or need it, not any intrinsic value that all patents have.
This myth sets the stage for Patent Myth #4, which is also very widely believed.
Patent Myth #4 – “Simply having a patent allows you to make money from it.”
The upshot of believing patents are intrinsically valuable is believing that simply having a patent allows you to make money from it. Nothing could be further from the truth. Even if your patent has value (that is, people want or need the invention it protects), that is still no guarantee of making money.
If you read our “Before You Patent It” series, you know that Henry David Thoreau never built a better mousetrap and the world never beat a path to his door. That saying is only partially correct. Building a better mousetrap is important, but spreading the word about it is equally important. Same goes for making money from a patent.
If you want to sell, license, or otherwise commercialize the patent, you will need to market it. You will need to make entrepreneurs, retailers, and manufacturers aware that it exists. This can be done in several ways:
- Creating a pitchbook for your invention
- Putting together a presentation for your invention
- Marketing it only to retailers and manufacturers most likely to be interested
- Etc.
PatentHelpNow.com has several free articles on each of these subjects in particular and on commercializing your patent in general. Review them and determine whether you are willing or able to do that kind of work – before you get a patent.
Part 3 will wrap up this series by debunking patent myths 5, 6, and 7.
Patent Facts & Fiction – Part 1
| A 3-part series debunking the most widespread and misleading myths about patents. |
Too many inventors and entrepreneurs have false ideas about patents. This is because for every factual, well-researched article, book, or blog on patents, there are at least 5-10 bad ones spreading myths and attractive lies on the subject. Indeed, patent myths have become so widespread that even otherwise intelligent and skeptical people are falling for them.
This would not be so bad if the myths in question were harmless. But they are not; virtually all patent myths are harmful or potentially harmful. (Some myths reflect serious misunderstandings of even the basics.) As you learned in our “Before You Patent It” series, getting a patent is a significant investment of time and money. Committing thousands of dollars and years of your life to something, based on false notions and expectations, is not smart.
The advice in this series is intended to save you from doing that by debunking the most misleading patent myths. Before tackling specific myths, however, let’s begin by defining once and for all what a patent is. The following definition comes straight from the US Patent & Trademark Office’s website:
| What Is a Patent?
A patent for an invention is the grant of a property right to the inventor, issued by the Patent and Trademark Office. The term of a new patent is 20 years from the date on which the application for the patent was filed in the United States or, in special cases, from the date an earlier related application was filed, subject to the payment of maintenance fees. US patent grants are effective only within the US, US territories, and US possessions. The right conferred by the patent grant is, in the language of the statute and of the grant itself, “the right to exclude others from making, using, offering for sale, or selling” the invention in the United States or “importing” the invention into the United 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. – “What Are Patents, Trademarks, Servicemarks, and Copyrights?” |
Familiarize yourself with this definition, as we will refer back to it often when debunking specific patent myths. You should also reference it when you talk to anyone about patents (especially anyone trying to sell you patent-related products and services.) Does what that person says fit with the above definition of what a patent is? This question alone should keep you safe from 90% of the patent disinformation out there.
Now, let’s proceed to the 7 specific patent myths we’re debunking today:
1) “You can patent an idea.”
2) “The US Patent & Trademark Office will stop people from infringing on my patent.”
3) “Patents are intrinsically valuable.”
4) “Simply having a patent allows you to make money from it.”
5) “A patent protects what’s in the drawings in the application.”
6) “Patenting something means I, and I alone, can make and sell my invention.”
7) “Starting with a provisional patent is costlier than starting with a non-provisional patent.”
As we alluded to earlier, each of these myths is potentially harmful if acted upon. Each of them could result in you spending large amounts of time and money and not getting what you thought you would get (at best) or getting into serious legal or financial trouble (at worst.)
So let’s take each of these myths, one at a time, and dissect the truth behind each one. Part 2 of this series gets us started with possibly the most widespread patent myth of all – the notion that you can patent an idea.