12 Patent Myths That Need To Get Busted-Now

To do or not to Do, That is the Question.- Michael Hyat

Every organizations founder at some point of time finds himself in the To do or

not to Do dilemma when it comes to investing in intangible assets for the
company. There are many factors which could prevent the decision makers from
protecting their products with help of patents.

Some of the factors include less investment capital, service-based business model
or the lack of knowledge in terms of Intellectual property. But for those aware,
there are certain myths that hold them back from going ahead and patenting their
products.

False knowledge and assumptions often result in formation of myths that goes
around doing rounds, stopping potential businesses from safeguarding their
products or technologies. In this post, we try to break the barriers of false
knowledge and discover the reality beneath the top patent related myths.

Only Breakthrough Ideas can be patented: This is one of the primary

misconceptions that held back hundreds of innovative technologies from being
patent protected. The truth is any idea that is new or a significant improvement
over an already present product can be patented. For example, Technologies as
simple as checking the freshness of vegetables/fruits (Vegetable Freshness
monitoring) or as crazy as high-five machine (US patent 5356330) can be
patented.

Software cant be patented: Though the debate on patentability for software has
been going on for long, citing copyright protection as the most secure and
cheaper form of protection of the source code, patents evolve as a winner in the
long run since the idea/concept claimed is protected.

Any tweak to the source code and copyright protection cant be enforced whereas
patents protect the algorithm or the functional steps in software. An excellent
example is RSA Algorithm (US Patent 4408529) ; the de facto encryption algorithm
for securing data transferred over the internet, enjoyed the protection from being
copied by having a patent granted. Before the patent expired in 2000, RSA security
made tons of money by licensing the patent on royalty-based licensing policy. The
gist is software can be patented and could also help earn a lot of money through
licensing.

Getting a Patent will Stop everyone else from Copying: Most people like to
believe that getting a patent on a technology can stop others from copying the
product. The disappointing truth is- A patent cant stop anyone from copying your
product but one can file a complaint for infringement in the court and seek royalty
costs for damages caused. For instance, Samsung in 2011 was accused by Apple
for infringing multiple of its patents, trademarks and designs. In a court ruling in
2012, Apple was awarded a billion dollar in damages.

Patent or No patent, you cant stop anyone from copying your product. But you
can always seek damages with the exclusive right granted working in your favor.

File Early Otherwise you will Miss: Most companies choose to file a patent over a
technology as soon as they discover it in order to be first in the illusionary race-
who patents first? Without a proper search being conducted, filing for a patent is
not the right choice considering the fact that it takes up a lot of money for getting
a patent issued. Even if a patent is not granted, it takes up thousands of dollars to
file a patent application. Not everyone is thinking what you are thinking. It is
always better to wait, check for the pros and cons, evaluate and then file for a
patent.

Patent Search is necessary before filing a Patent Application: Though It is not

totally necessary to conduct a patent search before filing an application with the
PTO, it is considered a good business practice to conduct a search on prior art in
order to establish the fact that the invention is in fact novel thus increasing the
chances of getting a patent.

For instance, Apple had to pay a fine of 368 million for infringing VirnetX patents
for secure communications in a virtual network (US6502135) since they failed to
perform a proper patent search on existing patents before filing the FaceTime
patent application (US20140176660).
Patents are easy to search: It is often believed that anyone can conduct a
patentability search for existing inventions. Though it is true that patents are
freely available on the internet, conducting patent searches is a tedious process.
For instance, the title for a Telephone patent is: Method and apparatus for using
pushbutton telephone keys for generation of alpha-numeric information
(US3967273A )

With millions of patents that exists, it is difficult to find if there is any prior art
present for the patent in question, hence requiring the need of experts in the
field- Patent Search Agents in order to make the process easy at a nominal cost.

You can still get a patent if a prior patent doesnt disclose your idea: Not the
complete truth. In order to get a patent issued, the invention must satisfy the
three criteria for patentability- Novelty, Non-obviousness and Utility. In case if
there are no patents filed till date related to your invention but the idea has been
mentioned in non-patent literature like articles, blogs-the invention wouldnt be
considered as novel thereby cancelling the issue of patent.

For instance, IBM Simon (US5537608), the PDA that was released in 1993,
considered as the first Smartphone, could have hindered the progress in
Smartphone market since it totally explained the concept of a Smartphone but
since most companies chose to restrict their functionality to a single aspect, the
patents werent rejected yet it became impossible to get entire functionalities of a
Smartphone in a single patent.

You can File A Worldwide Patent: A patent that is valid worldwide in a single
application is not a possibility since most countries consider application filed even
a year earlier as prior art. Though, it is possible to file a patent application in
multiple countries at different points of time, within a span of one year, once you
submit the patent application to PCT office.

According to the Patent Cooperation treaty, any patent application filed under the
PCT office achieves the status of being an international application and is provided
patent protection by 148 contracting countries. In that way, it is possible to file a
patent that could be used internationally.
Cost of a patent can be predicted: There are two sides of a coin.

Though it is possible to calculate the cost incurred for filing and maintenance of a
patent, there are certain invisible strings attached. An average software patent
costs almost $23000 excluding the maintenance fee of $3000. In case of
prosecution, an additional cost of $5000-$7000 is incurred along with attorneys
fee which can go as high as $10000 depending on the severity of the case and the
companies involved in prosecution. So accurately determining how much a patent
would cost to the organization isnt possible.

Another aspect is the value that the patent holds. For instance, Lipitor, a
cholesterol lowering drug that expired in 2011 was considered the most valuable
patent ever, since the single patent helped the Assignee Pfizer earn $105 Billion in
revenue. Some patents may turn out to be really valuable even though the cost
incurred was less and some expensive patents could end up being an unused part
of a huge patent portfolio.

The Marketing Department has Nothing to do with Intellectual property: Though

the function of marketing department is limited to branding and publicity of the
companys products and services, it is not true that they do not need to deal with
Intellectual property.

For most young companies, like startups, patents are used as badges to highlight
how involved they are in a particular domain. And the marketing department,
need to get involved in understanding the assets that the company owns in order
to form marketing strategies based on the intangible assets that they have. Myth
Busted.

Patents could only be understood by Attorneys: Though Legal jargon is used for
drafting the patent application, it is not true that only attorneys could understand
the matter written inside a patent. Another myth that goes in hand is that
engineers couldnt understand what is written in a patent. The truth is- Any
person who is skilled in the particular domain can read and easily understand the
content written inside a patent application.
For instance, checking out the folding bed patent numbered US561654 would
reveal the truth. It is easy to understand. Isnt it?

Patents are boring: To the ignorant mind, even gold appears as a shiny metal. So
is the case for people unaware of the secrets that patents hold. In fact, patents are
insight providers on the technologies that would be used in future, technologies
that would trend in future. When used right, it would help you stay ahead of the
curve.

For instance, consider patent US3150831, an idea of a birthday cake candle

extinguisher. Why blow the candles with large amounts of exhaled air when you
can use an extinguisher to blow the candles on the cake. Not that boring anymore.
Are they?