Whether you are a startup founder or an innovator, the thought of having an exclusive right over your innovation must have occurred to you at some point of time. Intellectual property rights (such as patent, trademarks, copyrights) give you with a sense of security and peace of mind that no one is going to replicate your idea without your consent and a mutually agreed payment. While patents give you protection on utility inventions, trademarks and copyrights provide protection on your brand (logos, company/product names) and artworks respectively. Like taxation law, IP law is also a little bit complex in nature and legal expertise is often needed to handle disputes related to intellectual property related matters. However, having a knowledge of some basics of patent rights can help easily in securing protection and avoid major conflicts at a later stage. We discuss below some of the most common myths related to patent rights:
Myth 1: I came across a great idea today. Let’s get my idea patented.
Just an idea as such is not patentable, unless it can be used to create a machine, process, product, or new composition. For example, time travel is not patentable until and unless there is a time travel machine, or a method for time travel that can be used to build such a machine or using such a machine. Mere ideas are not patentable!!
Myth 2: There is no existing patent on the invention I am having. So, I shall get a patent on my invention.
Mere non-existence of a rival patent doesn’t entitle you to a patent grant. Any similar prior art in the form of journal, thesis, video, process-chart, manual, description, book, or presentation etc. can hinder your chances of getting a patent. A novelty search by patent search expert must be conducted to check for similar prior arts before filing a patent application.
Myth 3: There is no patent or any non-patent for my invention in my country. So, I shall get a patent on my invention.
For an invention to be patentable, it has to be novel (i.e. new) in the whole world. Any similar patent or non-patent reference available in any part of the world that was present before the filing of your patent application can hinder your chances of getting a patent. A patentability search by patent search experts must be conducted to check for similar prior arts globally.
Myth 4: I have been granted a patent on my invention. Now nobody in the world can copy my invention and I have absolute protection over my invention in the world.
Patents have country wise jurisdiction. There is no single patent that can provide a global protection over an invention. A patent can only provide protection in the country where it has been granted. To secure a global protection on invention, one must apply for patents in all the countries in the world.
Myth 5: Now that I have secured a patent over my invention, I can freely manufacture or sell my product in any part of the world.
Patent grant do not necessarily provide freedom of manufacturing, distribution, or sale of the product. Product manufacturing, usage, distribution, or sale is only legal when your product or any component used in the product is not infringing on the patent of a third party. For example, if your product is a drone with camera, you must check if someone else doesn’t hold a patent for the camera (you are using in the drone) or the rotors or engine of the drone, and so and so. A Freedom to Operate search is accordingly recommended to check for any active patents worldwide (or in the country where you want to sell your product) that may hinder you from launching your product.
Myth 6: I have discovered a new planet using my special telescope. I shall now take a patent for the planet.
No, you cannot take a patent on the discovered planet. Instead, you can take a patent on the telescope or the method of using the telescope can be patented. You can secure copyrights on the pictures of the new planet.
Things that cannot be patented include discoveries, scientific theories, mathematical methods, aesthetic creations, schemes, rules, and methods for performing mental acts, playing games, or presentations of information.
Myth 7: Patent offers protection to everything that has been mentioned in the patent document.
A patent only provides protection to the subject matter that has been “claimed” in the patent. If you have disclosed any important aspect of your invention in the description section, but you missed to include the same in the “claim section”, you will not be able to take protection over that. Patent drafting is a very important aspect while applying for a patent and it is recommended to take help from a patent drafting expert.
Myth 8: Software are not patentable.
A patent for software can be granted if you describe it as a process. It is highly recommended to take help form a patent drafting expert while drafting application for software as they are tricky. Codes used in software on the other hand are not patentable.
Myth 9: A PCT gives you exclusive rights in all its contracting states.
PCT application only gives you priority right in its contracting states. It depends on you if you want to have a patent in those countries by paying respective fees in each country of interest. It must also be noted that a PCT examination report is only a preliminary report; when you proceed for activating patent in contracting states, a standard examination process in each country is still undergone.
Myth 10: I don’t need a patent as there are no competitors in my business sector.
Apart from giving legal protection, patents also help increase brand values of the patented products. When a consumer gets to know that your product is patented, it is perceived that your product is innovation driven, superior and trustworthy. Apart from that, all business sectors are prone to competition at some point. Being the earliest bird in technology and patents gives a good edge in competition. Having a patent earlier than your competitors will grant you exclusive rights over your product and opportunity for out licensing your patents.
Myth 11: I need to have a revolutionary invention to apply for a patent.
An invention doesn’t necessarily need to be revolutionary to be eligible for a patent. As long as the invention is patentable, novel, non-obvious and has utility, a patent can be granted over same. An improvement on existing inventions (maybe having a patent) are also patentable if the improvement is non-obvious.
Myth 12: Once granted the patent is valid for 20 years and I don’t have to do anything.
The patent protection is valid for 20 years after the effective filing date of the patent application. However, for keeping the patent enforceable, you must pay its maintenance fee at regular intervals. A patent is deemed lapsed if you don’t pay maintenance fee.
Myth 13: After grant, my patent and cannot be cancelled.
Patents can be cancelled even after grant. If someone can prove that there existed a prior art before you applied for the patent. An invalidity search provides prior art references that can be used to invalidate a patent. It is therefore necessary to have a thorough patentability search conducted to know before hand all the prior arts that existed before you apply for a patent, as a good invalidity search can prove your novel invention to be non-novel even after patent grant.
Myth 14: A single patent is enough to lead the market
While there has been instances wherein a single patent (for e.g., Alexander Graham Bell’s US 174,465 patent for telephone) helped monopolize the market, usually a single patent is not enough to lead the market. Competitors will keep on working on improved technologies and file more patents that may exclude the initial inventor from market. Accordingly, adding patents in your portfolio regularly is a good practice to stay in the market.
Myth 15: The components of our product are made by our suppliers. So, we don’t have to worry for infringement.
Anyone who manufactures, uses, sells, or distributes a patented invention can be sued for patent infringement. Even if your product is made of components by your suppliers, a patent owner may sue you and other companies in supply chain that for infringing the component(s). One way to reduce the risk for same is to bargain strong indemnity protection with suppliers for any infringement.
Myth 16: We are using very old technology in our product. So, we can’t be sued for infringement.
A patent usually expire after 20 years from its effective filing date. So, mostly the technology older than 20 years is considered safe from infringement perspective. However, there can be active patents on older technology with very minute and non-obvious improvements. Such patents will pose a threat for infringement. It is recommended to have a thorough FTO search performed to identify such threatening patents.
Myth 17: My product uses industry standards. So, I shouldn’t bother about patent infringement.
Most standards are covered by plurality of patents, most of which are owned by companies that worked on developing the technology for standardization. The policies and practices concerning IP related to standardized technology vary from industry to industry. In some industries, it is customary to provide royalty free licenses to patents related to standard essential technology. In other industries, it is common to negotiate bilateral royalty bearing license agreements with numerous patent holders. Accordingly, you must know the relevant standards and what licenses are customary.
Myth 18: We haven’t copied anyone’s technology and use our own patent in our product. So, we don’t need to worry about patent infringements.
Whether you have copied intentionally or not intentionally, it is not necessary for a patent owner to prove that infringement was “willful” to succeed in a patent suit and recover damages. While patents provide protection to your invention from someone else copying it, it doesn’t provide insulation from infringement claims. It is possible that your product covers many components covered by others’ patents.
Myth 19: The patent office will monitor to see if someone is patenting a similar invention to my already patented invention.
Although a patent office does examine a patent application before grant, it is your job to monitor newly published applications in your business field. If a patent application for a similar invention is published, you can always file for an opposition with patent office during opposition period.
Myth 20: Why waste effort and money on Patent. Let’s keep our invention a trade secret.
Keeping your invention as a trade secret is a good idea but it should be opted only if you are confident that it is not so easy to reverse engineer the product based on invention. Maintaining the secrecy of a trade secret involves significant efforts and there is always a risk of losing it. Also, trade-secret is very difficult to enforce, compared to any other form of IP rights.
Once you are aware of the most common myths, the next step is to understand what questions you should ask yourself before going for a patent and how to maximize profit from your invention. It also comes in handy to know if you are unintentionally demonetizing your invention or patent.
Although a patent can be filed without any consultation, as the patent offices do provide necessary support wherever possible during the patenting process, it is still recommended to hire an as they will help you right from the patent filing process till the patent is granted. Experts will be helpful in later stages as well if you decide to sue someone who is using your invention without your permission. A patent expert with good knowledge of the patent law, rules and office practices and procedures will help you make the right decisions to protect your invention correctly and keep you safe from various myths related to patents.
If you need a patent search and drafting partner who not only understands your technology, industry, and needs, but also stay with you on each step during assignment and make sure you get the results crucial for your win, then you are at the right place. Clubbing the experience and expertise of our techno-legal experts, and AI-powered tools, Boolean IP provides high quality IP solutions that help you succeed. Get in touch for your queries.