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The Curious Case of Patents | To Patent or Not to Patent: Entrepreneur’s Dilemma

A patent is the grant of a right to an inventor by the patent office that gives the holder the legal right to exclude others from making, using, or selling the invention in that particular country. The patent law generally allows patents relating to any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, exact definition of which may vary from one country to another. Generally, a majority of patents are improvements, but they still relate to something new, i.e. something that does not already exist.

A major hurdle faced by every entrepreneur and technology business during early stage of operation is to decide whether to protect the idea behind the business or not. The major fear is that if not done, anyone can steal it. However, on the basis of pure business sense, the idea is more of an opportunity than an invention. Although patent is a valuable business tool, it may not be the top priority for every business during early stages. Accordingly, prior to investing time and money in securing a patent, it should be ensured that it is a smart business move. Going by the statistics, only a small percentage of all patented products ever make it to market.

In contrast, for inventors and startups in technology business, their future is usually dependent on the success and failure of a new invention, or an improvement to an existing invention, and hence, a patent can become the most valuable asset. It will provide the required protection from a competitor to exactly duplicate the ideas.

This dilemma of filing a patent or not can be understood by analyzing the role of Benjamin Button played by Brad Pitt in the movie The Curious Case of Benjamin Button, which is a 2008 American fantasy drama film directed by David Fincher and stars Brad Pitt as a man who ages in reverse, i.e. when he is actually 7-year old, he physically appears 77, while at the age of 63 years, he appears 21.

Based on the similar analogy, a single patent is not strong usually enough to stop competitors when it is young. Once the business passes through initial hurdles and gets into the groove, the patent rights can be strengthened by developing and protecting all the improvements and new features, thereby resulting in a strong patent portfolio. By the time all the patents comprising a portfolio are granted, the strength of the portfolio will be as strong as ever to enforce corresponding rights for stopping the competitors from duplicating the core products without obtaining a license.

To decide whether to file a patent or not, it is crucial to ensure that the patent filing fits within the business strategy. In other words, patents that do not directly support the core business are usually not worth the time and money spent on them.

Even after a patent is filed, it is a tedious and lengthy process to prosecute the patent and get it granted. Generally, when businesses are struggling to launch a product, intellectual property issues are often the last things on their priority list. But still, protecting the ideas and inventions, and at the same time making sure that the rights of others are not infringed could make or break the business in the long term.

While deciding whether to file a patent or not, it is always advisable to conduct a thorough patent search, which resolves two important issues. First, it will help ensure that the idea hasn’t already been patented, and second, it will bring out a list of other patents that might be infringed in case you go ahead with the product in present form.

Analyzing certain commercial parameters is also helpful in deciding about patents. For example, a basic prototype can be developed to determine the product’s functionality, as this will bring out an almost final design prior to filing a patent. Conducting an initial market research to define the market and determine its size also helps in determining the commercially viability of the product.

To conclude, it is always better to keep an open mind when deciding about patents. While most patent attorneys recommend filing a patent without giving much thought, it is always better to execute some of the above-mentioned steps to take at a wise decision.

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Contributors: Prity Khastgir and Rahul Dev 

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