To Patent, Keep a Secret Or Not to Worry?

By Team YS|13th Mar 2012
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I woke up with a bright sun in the sky after a long time and decided to go late for work. Repetitive calls from office pestered me to come early to meet a waiting client. On my way to office, I was curious to know who the client was as I had no meetings fixed in the first half. Finally I met the client, welcomed him, and asked him ‘How may I help you Sir?’ He inquired a commonly awaited question ‘shall I patent my invention or not? Is it patentable at the first place?’ This article walks through few possible answers to this multi-answer question.

As we have discussed in the previous posts, a prior art search is must to check for novelty of the invention. It clears out most of the odds for its patentability. Now that you know your invention is new, is it worth a patent? There are three possible questions you must ask to yourself in such a situation: 1) Do I have excess cash for patent, 2) Is it worth spending excess cash for a patent, and 3) Will public disclosure via patent affect my business?

1)     Do I have excess cash for patent? Well we did answer this question in the previous post with average numbers and time planning.

2)     Is it worth spending cash for a patent? This is the trickiest question of the lot and the answer varies in different situations. For large corporations, they take lots of indicators in consideration like market capturing capability, maturity of technology, alignment with business strategy, and addition to portfolio. Unlike, it’s a game changer for start-ups. There are two benefits to start-ups in getting a patent, one I call as real benefit and other as ancillary benefit. The real benefit in getting a patent is either value of transaction while selling it off to another company or the market share advantage it gives you over the competitors. Ancillary benefit would be advantage in marketing and credibility of the firm with patents pending or granted. And trust me when I say this, many start-ups foresee ancillary benefits weighing more than real benefits over a short term and vice-versa in the long run. I give an analogy to my clients to resolve their issue. 

Your business comprises of:

MANAGEMENT TEAM | EMPLOYEES |  CONTACTS  |  SERVICES |  PRODUCTS |  INNOVATION

Now, start ranking in order of loss your business will bear if the respective category is thrown out of your business. If innovation or Innovative products/services come at the end, it’s probably not worth getting a patent.

You are actually trying to protect your technology from competitors. So, is your technology the only or the best solution to the problem, or competitors can come up with another solution very easily? ‘ONLY / BEST + EASILY’ is the answer to your problem.

3)     Public Disclosure? Many people say that it’s tough to enforce your Intellectual Property as it adds cost in finding infringers, litigation cost, and active track of competitors’ activities. Thus, by disclosing the patent we are disclosing secret of technology in exchange for monopoly. Advantage of keeping it a trade secret is that you don’t disclose the technology in public but lose monopoly until you file for a patent and add a risk that someone else can file for a patent if he discovers the invention independently. Mostly manufacturing and mechanical industry avoid trade secret practice as reverse engineering is easy to get the secret out anyhow. Whereas, chemical and perfume industry is a tough crack for reverse engineering and also tracking infringers is similarly difficult. That is why you see perfume industry filing very less number of patents as well as popular Coca Cola chemical composition is yet a trade secret for 100 years.

 

Balance real and added value from the patent with costs involved. Prepare a long term plan for your business and envision advantage of technology 3 – 5 years down the line. Lastly, consult a patent specialist for more clear advice.

About InnovAccer

INNOVACCER (Innovation Accelerated) is an innovation management and acceleration company focused and dedicated to provide high quality innovation management services to accelerate every step of an innovation life-cycle. InnovAccer was founded with a vision of people in the fields of Intellectual Property, Business Innovation, and Technology to change and accelerate the creation of innovation ecosystem in India. InnovAccer’s team comes from a varied background of engineers graduated from IITs, intellectual property specialists graduated from Franklin Pierce Law Center, USA, analysts, statisticians, and business innovation experts.

www.innovaccer.com

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