Introduction
For entrepreneurs and startup founders venturing into the development of hardware or hard tech products, understanding the key aspects of Intellectual Property – specifically patents – is crucial to avoid mistakes. In this article, we will discuss fundamental aspects such as what is a patent and why to patent, as well as concepts like patent misconceptions and the different concerns of patent attorneys versus product developers.
What is a Patent?
According to Wikipedia, a patent is a type of intellectual property that gives its owner the legal right to exclude others from making, using, or selling an invention for a limited period of time (typically 20 years) in exchange for publishing an enabling disclosure of the invention.
Generally speaking, a patent is composed of three sections: 1. specifications, 2. drawings, and 3. patent claims. Only the patent claims define the exclusive right granted to the patent applicant; the rest of the patent (specifications and drawings) is intended to facilitate understanding of the claimed invention. Therefore, patent claims are the most important part of the patent application because it is the claims that define the invention for which the Patent Office has granted protection.
Why Patent?
Filing for Intellectual Property (IP) like a patent is an important step for any hardware entrepreneur to consider. A patent can increase the value of the hardware design and provide some amount of protection.
To file a well written patent or provisional patent, hardware entrepreneurs are encouraged to seek and hire outside Intellectual Property Legal Council, also known as Patent Attorneys. Tomorrow Lab does not provide legal services of any kind, however the Tomorrow Lab Partners often help co-author claims language about the products we are hired to invent and develop for our Clients. Tomorrow Lab can also help Clients with their patent strategy from the point of view of product designers and engineers.
Having a patent can make your hardware venture more attractive to investors and partners. Keep in mind that the value of a patent is in its claims, and therefore not all patents carry equal weight or power. A well-written patent focuses on a few claims which are non-obvious features central to your product or invention. Patent claims are generally arranged in order of scope and importance, so that the first claim presented is the primary one and the broadest. All dependent claims — often thought of as your product’s sub-features — are often grouped together with the claim or claims to which they refer to the extent that is practical.
Patents Expire
Remember the wave of table top 3D Printers that hit the market between 2008 to 2010? From Makerbot to Ultimaker, there were many competitors with similar features. The main reason behind this was because from 2002 to 2014, about 225 early 3D printing patents expired, including about 16 key patents relating to 3D Printing processes called Material Extrusion, Powder Bed Fusion, and Vat Photopolymerization. This means that 20 year old 3D printing technologies became free-and-clear to use by others, which led to a rush of new products and brands.
This is the whole point of the patent system: to give a monopoly of selling the technology to its inventors for a limited period of time. after-which the patent enters the public domain and we all ‘level up’ together. Expired patents can be a treasure trove for inventors and represent valuable ‘tried and true’ technology approaches.
Patent Attorneys vs Product Developers
It is important to realize that while the patenting process assumes you have completed the technical rigor to validate the claims you made in a patent application are accurate and repeatable, in fact there is no requirement for it to be true and no one is checking. Also it is common practice to include descriptions of additional options or embodiment variations in patents that may or may not have ever existed, in order to help future-proof the patent. This means that the patent process is not a replacement for the product design & engineering process, and the product design & engineering process is not a replacement for the patent process.
Patents are typically written and filed with the help of Patent Attorneys, who are familiar with the structure of patents and the filing process. The patent attorney may have a specialization in a particular domain related to the product (for example with automotive technology), which means they may have strategies for what aspects to patent and how to structure the claims for success once the patent application is Filed. After filing, an examiner at the USPTO office reviews the patent application claims and decides which claims are truly novel in comparison to the prior art.
While the two often run adjacent to each other, the concerns of patent attorneys and product designers are different. A patent attorney’s job is to research and articulate the non-obvious claims of the invention following a strategy they discuss with their Clients; That strategy may be related to the ‘whole’ product, or it may just focus on a small aspect; for example how two parts of a machine fit together.
In contrast to patent attorneys, product designers & product development professionals like Tomorrow Lab make sure the design features and functions actually perform the way they are intended to, and that the product can be made. Their concerns are more than just the key pieces that make the product work, and encompass all aspects & features of the product whether patented or not.
Patenting Misconceptions
Lastly, here are the top three misconceptions that we often hear others making about patents:
1. It has to work before you patent it. FALSE. You can patent absolute nonsense, so long as it is novel (non obvious) and you provide an explanation for how it’s done.
2. A good patent explains all aspects of my invention. FALSE. A good patent focuses on the ‘cornerstone(s)’ of the invention, which are the non-obvious critical elements that without it, the product would be different. Note that the more ambitious or broad a patent is, the more time and expense will be required to defend it.
3. Once I have a patent, I’m protected! FALSE. Having a patent only gives you a legal footing to pursue litigation against a party who you believe to be infringing. Legal battles over IP can be expensive and time consuming, especially if the offending party is much bigger than you and has relatively endless resources.
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