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A Patent is not Protection!

Working in patent research, I speak with lots of new inventors who are just getting started in the business of inventing. A line I hear a lot from inventors is: “I just want to get some protection for my invention.”

What’s more, we see a lot of advertising from not-so-reputable firms pushing this idea of patent protection. “Protect your invention with a patent,” they say.

The idea of protection is closely associated with patenting in people’s minds. It’s what people really want when they think of patenting their invention, even when they’re just filing a provisional patent application. After all, isn’t intellectual property just like normal property? Of course, this is just another instance where the term, intellectual property, just muddys up the water.

There's no such thing as a patent police force

There’s no such thing as a patent police force.

When an inventor starts talking about “protection,” I have to put the brakes on the conversation, because I want to make sure that I’m working with someone who knows and understands what a patent can and cannot do. Protection implies that you can have a sense of security, that you have a nice high wall around your intellectual property. It’s as if owning patent also guarantees 24-hour surveillance by federal law enforcement agents and the threat of hard time to would-be infringers. But there is no such thing as a patent police force, nor has there ever been. Infringement on intellectual property is a matter for civil court, which means that if you think someone is knocking off your patented invention, you have to take them to court yourself. Unlike the tangible your property, it isn’t a crime when someone infringes on your patents. (Copyright is a different matter, in that there is such a thing as criminal copyright infringement, but that’s not the focus of this post.)

Not only is there no real protection in a patent, it gets worse. If you do find someone infringing on your patent and you sue them, you might lose. Not just your case; you might actually lose patent! This is because the most common defense move in patent infringement cases is to attempt to invalidate the plaintiff’s patent. If your patent is invalidated, your case is over. And so is your patent.

If patent infringement is not a crime, what is the point of getting a patent?

In terms of protection, a patent does not give you total security but strong deterrence, especially if the patent is well written. The threat of litigation will keep the more honest players out. However, if your invention is good, it might get knocked off.

The key is to think of patents in terms of your wider business strategy. Intellectual property is a component of the strategy.  However, a patent doesn’t give you anything that you don’t already have. If you don’t have a business plan or investors or a great idea, a patent doesn’t make any of this important stuff magically appear.

So get patents, but also build a business. Be an entrepreneur!