You should patent that….or should you?

I come up with ideas all the time.  Some are good, some are bad. At my previous job, we could turn our ideas into patents.  I have over 30 US Patent applications, 19 issued patents (it takes years for those applications to turn into issued patents).  DISCLAIMER: I have a bunch of patent experience, but I’m not a patent lawyer.  Take this article with a grain of salt.

Every once in a while, I would get a comment from someone along the lines of, “If you come up with a really good idea, you should quit your job and then patent it.” Now, I know they were just trying to be encouraging.  Much like when people find out I can solve a Rubik’s cube in about 20 seconds, and they’ll say, “You could win a competition.”  No, I can’t. Probably won’t make it to the second round. Anyway, I never decided that any of my ideas were worth leaving my job for.  I got paid by the company for ideas provided to them.  It was a win-win.

I did learn a lot about the patent process.  The company wasn’t shy about letting us know how much was spent to get a single patent.  But I’m going to be, because that’s probably confidential information. Let’s just say it was more than the cost of a Snickers bar.

On TV and on the Internet, you see those “Patent your idea for $X”.  Well, according to one site, the cost of a patent (all the fees) if you do everything yourself is $1,520. They say that getting a lawyer will change the cost to $5,000 to $10,000.

But here’s the thing.  That lawyer, his goal is to get you a patent.  A patent doesn’t magically protect your invention.  It protects what’s patented.  This may be your entire invention, it may be just some key ideas.  So there’s what’s called “narrow patents” and “broad patents”.  Narrow patents are ones that protect very specific ideas.  Broad patents are ones that protect a much bigger idea.  For example, having a patent on a combustion engine would be wonderful.  Having a patent on a combustion engine that has 5-cylinders and is designed to work in extreme cold situations?  Well, that’s nice, but it’s not as lucrative as the first.

But, guess which one is easier to obtain?  Despite what people think, the Patent Office doesn’t just approve everything.  There’s back and forth negotiation between the USPTO and the lawyers.  Certain claims will be denied.  Sometimes, the entire application will be denied.  Sometimes, that nice broad application get whittled down to a just a few claims.

Also, to infringe on a patent, the person needs to infringe on a claim.  Just being similar isn’t enough. If my engine design runs in cold weather, I may not be infringing on your patent. Maybe, I’m doing special heating that’s different from yours.  Your claim probably isn’t about running in cold weather, but about a certain way to heat the engine (or perhaps a certain way to make lack of heat not an issue).

I’ve seen a patent that was written to get issued.  It’s claim all chained together.  So to infringe, you had to do this AND this AND this AND this AND this AND this AND this.  The person who got it issued didn’t understand how patents worked. It would be very easy to work around the patent.

The lawyer who did that patent had a goal of having the patent issued.  The lawyers who worked for my previous company?  Their goal was to have the patent be good for the company, enforceable, and valuable.

If you have a brilliant idea, yes, there may be some situations where it could be helpful to get a patent.  But perhaps just getting it out to market and having the market exclusively to yourself for a while might be a better route.

What are your thoughts?

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Bryan Logan

About Bryan Logan

I'm Bryan. I like to innovate things. These innovations may materialize as activities with the kids, new/easier/better ways of doing things, smartphone apps, or just funny blog posts. You can find me on Twitter and
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  • Amaryah LaBeff

    This was a very interesting read and something I’ve been wrestling with (& fearing). So, let’s say you put your idea on the market and then someone else runs with your idea… even patents that brilliant idea in their name, even though you came up with the idea? Wasn’t there a law passed 2 years ago that gives the patent to whomever files for the patent first?

  • http://www.logan.cc/blog/ Bryan

    To patent something, it has to be new. They do what’s called a “prior art” search. If your idea is already on the market, then that’s prior art. So if they actually got their patent and come to you with it, all you have to do is point out that your product existed before their patent application was filed. So let’s say you have some idea that you’re not going to patent, but you want prior art. You could post the idea on your blog and perhaps a few other places (since you can forge stuff on your blog). For example, http://www.halfbakery.com/ or Facebook/Twitter (since you can’t forge the dates on those). And you don’t have to post the entire idea. Just enough to cover what would be your claims.

    The law past a few years ago dealt with this situation: http://en.wikipedia.org/wiki/First_to_file_and_first_to_invent

  • Amaryah LaBeff

    So in my case, my art is registered with Library of Congress so it is official (and could be argued as previous art)?

  • http://www.logan.cc/blog/ Bryan

    You’re patenting art? You can’t patent art. You copyright art.

  • Amaryah LaBeff

    No, an idea…

  • http://www.logan.cc/blog/ Bryan

    OK, so let’s say your idea is teaching music through use of animal note symbols. That might be patentable. If you’ve published a book that does it already, you wouldn’t need to patent it, because the prior art is there and visible.

    Now if you idea was “generating simple music for practice that has variance using an algorithm” and it spit out some simple music, and that music was published, that wouldn’t protect you because the idea isn’t visible, just the output.

    But in reality, that “automatic practice generator” patent is hard to enforce, because you can’t really determine if others are infringing on it.