What is a patent?
Patents are a powerful form of intellectual property protection. They can save inventions from infringement, provide lucrative licensing and monetization opportunities, and give your new invention a heightened level of credibility to attract inventors.
There are three types of patents: utility, design, and plant. The most common, useful, and important patents are utility patents.
Utility patents protect the functionality of any new and useful process, machine, article of manufacture, composition of matter, or any new and useful improvements. Utility patents grant a federal right of exclusive use to the invention for up to twenty years.
However, while utility patents are the most popular, they are also the most difficult to obtain.
J.D. Houvener, founder & CEO of Bold Patents says that: “The utility patent application process is longer and more rigorous than the other two types because it demands much more specification and description in the set of numbered claims that summarizes your invention.” Despite this level of difficulty, it is worthwhile for the majority of inventors, businesses, and entrepreneurs to face the hurdles and obtain patent protection.
Pros of Patenting
The most notable upside to patent protection is that a patent grants you market exclusivity over your product, service, or invention. This means that you will be the only player for your specific patent, with no direct competition, for up to 20 years. Your patent can be enforced against those who may infringe on your invention, giving you legal grounds against copycats.
Second, patents give you the ability to have a licensable asset- a true legal asset that you can monetize and license all over the world.
Third, patents are a way to more easily value your company. A robust patent portfolio can demonstrate significant worth to potential investors, partners, buyers, or customers.
Cons of Patenting
The biggest downside in obtaining a patent is that it is a costly process. It takes a lot of time, and a lot of money, to create your list of claims and send in your application. It requires working with a USPTO licensed patent attorney and making the application perfect so you have an increased chance of success. The application process requires a lot of patience because it can take a long time for approval.
Additionally, says Houvener, “if patenting is your only IP protection strategy, this will likely be an issue down the line. A successful IP strategy should include a mix of trade secrets, trademarks, copyrights, and licensing opportunities. A full IP strategy is what you need in your business plan. A patent without business plan is failure, and a business plan without a robust IP strategy can be a big problem”
Who should patent?
The most patentable inventions are tangible products- this category includes hardware, devices, simple items, etc. The more abstract the idea, the more difficult it can be to codify in a list of claims that will be eligible for patent protection.
Regardless, as long as the list of claims on the patent application can point back to something that is a functional benefit different from anything else on the market, and that is not merely a human activity or a financial transaction, then it should be protected by a patent.
The following industries demand very little patent protection: investment banking, currency exchange, legal services, philanthropy, and financial transaction software. This is not to say that there is absolutely no value in patent protection, but it is less crucial in these fields. Other forms of intellectual property protection such as trademarks and copyrights may take the lead in terms of importance for overall IP strategy.
Overall, the majority of companies should include a robust intellectual property strategy in their business plan that includes patent protection. There are certainly are cons in the patent process, but they can be mitigated by having a solid legal team to draft your patent claims, by carefully reading everything in the application, and submitting everything in a timely manner. The benefits of obtaining a patent will be well worth these initial hassles.
— Carly Klein is a law student at Loyola Law School in Los Angeles. A graduate from Boston University with a B.A. in Political Science & Philosophy, she previously served an Americorps term at the American Red Cross in Los Angeles on the Service to the Armed Forces & International Services Team.