Do You Really Need a Patent?

Apr 21, 2012

A patent agent gives us an insider’s perspective into the world of patents and intellectual property…and exposes the risks with filing a patent.  Guest post by Brad Fach.

New inventors often ask me “do I need a patent”.  It pains me to write this as someone who makes a living writing and filing patents, but patents are not always the best way to protect your idea (and they can actually harm you at times).  The truth is that many entrepreneurs do not really need a patent.  There are many other ways you can protect what you are doing and grow your business, and patents are not always the best solution.

I was recently contacted by a young women who started a natural hair care product company and was doing quite well locally and started to get interest from investors and other business owners in the community.  One piece of advice she received was that she must file a patent on her hair care product right away.  While it’s true that patents are a great form of intellectual property protection for many types of ideas and companies, they are not always the best fit for all products.   Here are some things you should know before trying to patent your idea:

Your secrets get published

Many people don’t realize that patents and pending patent applications get published.  This means that all of your details such as how to make and use your new invention are available for anyone around the world to read (for free).   If you invented a new hair care product and your secret formula was published online in a patent application, how would you even know if someone else copied your formula or made tweaks to it to create their own competing product?  If you could somehow prove they copied your idea, do you have the money (average $500,000) it takes to sue them in court?

Patents are not self enforcing

This means that you have to actually hire an attorney and sue someone who you think is copying your patent.  Just because the US Patent Office gave you a patent does not mean that they will go out and enforce it for you.  That part is up to you and can become very expensive.

Patents only last for 20 years

At first blush 20 years may sound like a long time but a solid company or new corporation should have plans to last a lot longer than 20 years.  If Coke decided to file a patent on their secret formula it would have expired 100 years ago and they would be forced to complete with generic formulas that taste exactly like their product.

So what’s the alternative?

A common alternative to a patent is something called a “Trade Secret”.  Trade secrets are a legal form of intellectual property that are recognized by each state.  Most things that can be protected by a patent such as methods and formulas can also be protected by a trade secret.  The biggest requirement to getting trade secret protection is that you have to take actual steps to keeping your idea secret.  Many people will write their formula or process down and keep it in a locked safe.  This may sound outdated but this is an acceptable way to prove to the courts that your idea is a trade secret.

I hope I did not completely scare you away from patents.  A patent still has many advantages and is an absolute must for certain types of businesses.  If your new company is in a high tech area or in the software field than it is probably a great investment to file a patent.  Not only does it offer some protection of your idea, but patents can also be used as an asset for your company that you can leverage when you are trying to raise money or sell your new idea to a customer.

About the Author:
Brad Fach is a registered patent agent and entrepreneur and has filed over 500 patent applications in a variety of technology areas. He is the creator of the site patentfile.org which offers free resources for inventors looking to patent their own ideas.