To patent or not to patent

To many, this isn't even a valid question.  If you have an idea that you think could make you a huge amount of money, of course you want to patent or otherwise protect your potential earnings.

If you speak with a lawyer, it is possible that what is explained to you is a fairly straightforward process.  Search to see if a patent exists for what you are solving, then file the necessary paperwork, and receive your patent.

And, it isn't terribly costly, and it is something that a person could do, themselves.  Just like registering a corporation.

So, why wouldn't someone patent their world changing solution?  It must be worth it.  Or is it, really?

Well, of course "value" is a personal thing.  So this really is a question of deciding what value any one of us would get from patenting or not patenting something.

While filing a patent might be straightforward, there is nothing straightforward, or at least simple, about preparing and getting a patent.  There is a lot of work that needs to go into a patent.  The search itself can be very time consuming, to be sure that there are not patents filed.  If the patent is based on something else or the product has a lot to it, determining what CAN be patented and how exactly to present it in a patent, is also a painstaking and lengthy process.  And often, this means that a lot of work has gone into putting it all together, possibly even a significant portion of R&D, possibly a prototype, and even a business plan to ensure that there is even a market and a profit to be made, otherwise if there will be no viable business, why patent?

Of course, "patent trolls" would beg to differ.  But their business plan is specifically to file and acquire patents by what ever means, simply to gain licensing fees or win court cases against infringement.

A patent can take a year or more to obtain, after initial filing.  The initial work can take a year or more.  All told, your "great idea" could take two, three, or more years, just to market and start making you money, recovering what you likely have already spent, in either real money or time and resources.  Once you have gone to market, how do you protect your patent?  If your patent is complex, can you even determine whether someone is infringing your patent, if a possible infringement even comes up on your radar?  If you go to court, will the judge rule in your favour?  And how long will it take?  And will there even be any financial compensation awaiting you, if the infringing party even has any to pay out?

There is an argument to be made, that only a big company can have any real, solid power in a patent.  They can afford to do the R&D, quietly, and perform due diligence to file a patent, and then the legal and financial resources to search for and file suit against a possible infringer.  And, they can even afford to take a loss on a legal suit, in favour or long term product sales and often associated press, further branding the product in people's minds.

Perhaps the Chinese have the right idea.  That might seem like an inflammatory statement, but it is well known that the Chinese are (in)famous for duplicating something already on the market, at a drastically reduced cost.  Often without consideration of patent.  They aren't the only ones.  It happens quite often.  People will put to market something that is patented, without proper license, and wait for a cease and desist letter.  All the while, making money off a patent they do not own.  They go in for a short term gain, with plans to stop producing after a quick turn around of profit.  The patent owner, possibly none the wiser to an infringement.

So does a person just move forward with something, without patenting?  Well, that's not quite what I'm saying.  But what is probably more important than filing a patent, is actually moving forward with the business of making money, with a viable business plan.  Get to market with your product and make your money as soon as you can, and let the patent process be a secondary concern, if you would bother with it, at all.  Patent or not, you have between six months to a year that you will have no competition with your unique design or product, before someone comes up with something that competes directly with it, regardless of whether they might infringe the patent.  Their product might be different enough from the patent, while still solving the same problem, and do so at a cheaper cost to the customer.  The time, effort, and money put into the patent can't stop valid competition.

If you do a search and no patent shows up, then file for a patent and at least get "patent pending", which could prove useful to prevent competition for a couple years, even if the patent is eventually denied.  Alternatively, there is what is called "filing a TPD".  Companies like IBM have used this in the past.  Rather than trying to obtain a patent on something that they are already do, they file a "Transfer to Public Domain".  That filing, while not obtaining themselves a patent, possibly because the process is probably already "common knowledge", they simply file a TPD in order to prevent someone else from filing a patent on something they are already doing.

Patent law is grey, there's no doubt about it.  And litigation can be very costly on vague patents, if they even result in a infringement case "win", which may not result in financial compensation.

Determine your own value in filing or not filing a patent or TPD.  At the end of the day, a patent may simply be a distraction from actually making money doing something that may only be viable for a few years, anyhow.