It’s very easy to find anecdotes that reinforce this notion – such as the recent news of patent wars fought out between smartphone manufacturers, resulting in huge compensation claims and banning product from certain geographical areas. Likewise, a 2012 PriceWaterHouse Coopers (PwC) study on patent litigation showed that between 2006 and 2011, the average pay-out when a patent owner successfully sues an infringer in a US court is a healthy $4 million dollars.
As with any legal framework, it’s also easy to find anecdotes on issues and deficiencies with the patent system. Apart from the high cost for patent applications and maintenance, some corporations blatantly infringe patents of “small-time” owners without permission simply by knowing that the latter cannot afford to defend it in court. Even if it does go to court, according to the PcW study, it would take on average two and a half years to see a trial, with the patent owner likely to win only 35% of the time.
When I think about the treasure and toil that may be required to exercise one’s granted legal rights – especially for sole-trading inventors, the UK’s Mandy Haberman usually comes to my mind. A mother whose frustrations with infant drinking cups led her to invent, to the gratitude of millions of parents, a simple and brilliant design that prevents spills when the cup is tipped. So popular was her solution that it also attracted opportunists, requiring her to spend substantial sums of money to fend them off in order to protect her future income. Fortunately, for Mandy, the patent system protected her.
Image credit: Infant AnywayupTM
Image credit: Infant AnywayupTM
On balance, despite the many challenges that can arise when pursuing and upholding a patent, inventors, engineers, R&D managers and company directors typically covet this potentially lucrative and powerful prize.
Application Failure
The first thing for those having expectations that their innovative solution might be patentable should consider that the failure rate of patent applications in the US is approximately 50%.
This is understandable due to the ever-expanding “State of the Art” – defined as the pool of knowledge and evidence (prior art) within an area of expertise that can include a patent, scientific paper, a picture of a machine from a 70s magazine, Leonards Da Vinci’s drawings and so forth. In other words, as time goes on, some say it’s harder to be novel – which your idea must be.
The other main rules are that the idea needs to be non-obvious (you want to solicit a “That’s interesting!” comment from a person ordinarily trained in the relevant field of expertise) and that the idea needs to clearly explain how it works and is made – (but not necessarily “is it useful ?”).
Therefore, as you would expect, some granted patents might raise some questions regarding marketability; such as “an apparatus to facilitate childbirth using centrifugal force”:
Image credit: US Patent 3,216,423
Image credit: US Patent 3,216,423
Or a muffler for not disturbing others when screaming out pent-up frustrations:
Image credit: US Patent 4,834,212
Patent: The Must-Have?
When a company commissions a development team to solve a problem, it often prefers concepts that are likely candidates for patent protection – understandably. Setting this criterion to judge ideas does need to be carefully managed.
On the positive side, this evaluation method can be a great catalyst for engineers to go beyond conventional thinking and practices if the conditions are right – and many would relish the challenge despite the high application failure rate.
However, the team has to be careful to not build-in complexity, risk and cost where it’s not needed, i.e. cracking the proverbial nut with a sledgehammer.
Assuming that inventiveness is balanced with commercial thinking and pragmatism, there will be instances where, despite many attempts of approaching the problem differently, the best solution might be one that seems supposedly obvious or is similar to existing prior art. This might result in the patent application being rejected.
What next?
One approach is to add more features or increase the performance requirements. This might work, however you need to make sure that you are still representing the true market need you identified. Likewise, with this approach, depending on your patent, potentially your competitor can legally copy the idea by just removing or changing one of the features.
Another approach is to select an idea that is patentable from your brainstorming effort but has scored less in terms of value. This can be a valid approach – only if you have not sacrificed too much cost, risk or effectiveness and that you are sure that your competitor would not come up with the same simple, un-patentable solution.
And another option is that you can enter the market without a patent.
Dragons’ Patent Lair
Those who have watched several episodes of Dragons’ Den would have likely seen the expression of disappointment from a celebrity investor when a product designer has shown something that has no patent protection. This is often followed by a Dragon declaring that they are not investing as anybody can do what they are proposing.
Image credit: BBC
Image credit: BBC
They are probably correct to reject some of those ideas on other grounds, however the irony is not lost on me; most of the wealth that each UK Dragon amassed was from business models and products that could have been copied in one form or another: elderly nursing, hospitality, office supply and lingerie retail, mobile phone distributorship and shipping.
They made their wealth knowing that there are plenty of opportunities to create protection beyond having a “utility” patent: the skills and enthusiasm of the people behind a service, the “design” of their services that support a product, branding, product aesthetics and usability, manufacturing quality and so on.
Likewise, as a company director once told me and seen in practice, having a head start in the market can be a great advantage, even when your competitor is bigger with a penchant for copying.
Yes, we should push ourselves to innovate. However if an engineer has managed to used his or her expertise to crystallise a simple solution for an unmet need, knowing that the product would sell – is the lack of patent-protection really the end of the road for the opportunity?