Patents. Cotton Candy or What?

[listenup77]

California. Ok, I've been reading up on patents, reading topics on several forums, posting questions and getting advice dealing with patents, etc. I've been slowly coming to the conclusion that patents aren't all what they are cracked up to be! It's like cotton candy, as a kid you get all excited seeing this big puff of candy to then realize it's just that, cotton. The average Joe gets all excited about this new idea, they go out and get a lawyer/agent to write up a patent for them. Joe Lawyer charges them an avg. of $3500 plus gov. fees. Now Joe Average has a piece of paper that says Patent on it. Looks like important and valuable government documents! Well, now Joe Average has to worry about people or large companies with deep pockets, designing around his patent; and he has to worry about the prosecution history if Festo comes out to play. Yeah the company can't get a patent on the same thing, but that doesn't stop them from making something similar to his (which falls within the scope of his claimed invention). Ok, let's just assume that the patent Joe Lawyer wrote is air-tight and not so Average Joe Company (with deep pockets) comes out with something similar to Joe Average's product. He writes them and says they are infringing and their not so average Law Firm writes back and says they are not b/c XY and Z is different and the XY and Z law applies to XY and Z. You see where I'm going, Joe Average doesn't have the money and deep pockets to go into long litigations with Not So Average Joe or all the others; he's already in the hole $3500 for getting the patent! The lawyer wins, he got $3500 from Joe Average to make his car payment, the company wins, they got a great new product idea to market and raise revenues, what about Joe! Does anyone have truth to help me not think that a patent is only as good as the money or means you have to protect it through litigation and even then, there are so many loop holes in the law to really fine someone totally liable (the copiers and big companies are shrewd). My attention is not to offend anyone, I’m just using sarcasms to get my thought expressed. Please correct me, I hope to be wrong. Any thoughts?

 

[divgradcurl]

I'm not going to give you a point-by-point response, but a couple of general observations on your post:

1. First off, many -- if not most -- inventors, expecially individual inventors, typically view their own creation with a very optimistic eye. The value of most inventions is pretty low, and that's a tough realization for a lot of people.

2. Patents are usually pretty limited in scope, even well-written patents. There are two good reasons for this. First, the obvious -- there are 6.5 million patents out there, plus all kinds of stuff advertised, written about and marketed that isn't covered by patents -- the fact is, it's tough to come up with something truely novel. Most inventions are an incremental improvement on existing creations, and sometimes it's just as easy to most in a different incremental fashion to get around a patent. There just aren't that many really truely broad, innovative patents out there -- and the ones that are truely groundbreaking and broad are typically far off at the "bleeding edge" of technology, stuff being done as top research labs and universities, not the sort of thing the typical average solo inventor would discover.

3. The other good reason that patents are typically construed narrowly by the court is because we in the U.S. are essentially a capitalist nation, and we view the grant of an official monopoly -- which is what a patent is -- with skepticism. We prefer free markets and free competition -- but as an incentive to innovate, we grant limited monopolies on novel inventions, to incentivize the inventors to bring their product to marker by allowing them the opportunity to recoup their investment without having "freeloaders" undercut their prices. Because a monopoly is the antithesis of free-market competition, we contrue these limited monopolies very narrowly.

4. It's true that patent litigation is typically big-ticket litigation -- but it's not always. First off, most (98%+) cases settle out sometime before trial, so it's usually not necessary to have the expense of a trial. Further, there are numerous lawfirms nationwide that will take plaintiff-side patent infringement cases on contingency, just like other plaintiff's lawyers. Of course, they will need to be convinced you do have a valid patent and a good case for infringement, and will need to be shown that, if they do win or settle, that the other side has resources to pay the judgment -- but those are issues you would need to confront even if you were paying the lawyers yourself.

5. Patents aren't really designed for some inventor to invent something, patent it, and then sit on it until they figure out what to do with the invention -- patents are designed to incentivize the inventor into investing the money to bring his invention to fruition and eventually, to the marketplace. Patents are part of doing business -- and doing business is usually not something that is cheap. Patents, and the enforcement of patents, are part of the cost of doing business, and should be considered as part of an overall business plan. It's probably foolish to come up with an idea, and spend the money to get a patent just because you can -- a shewd businessman will consider the cost of the patent as part of the cost of business, and will use that mindset to determine if the cost of obtaining the patent is justified.

A patent is not an automatic gold mine, and it does require some effort (and resources) on the patent holder's part to enforce his or her patent -- sometimes a lot of effort and resources. But these are the costs of doing business.