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Corporate Finance
Independent
Corporate Finance Advice For Acquisitions,
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A
design patent covers a product’s format or appearance.
Design patents may be granted to anyone
who invents a new, original, and ornamental design for
an article of manufacture.
The
design patent protects only the Cosmetic appearance
of an article, but not its structural or functional
features.
The disclosure and description of the invention in a
design application is entirely in the drawing and not
in the words. The single claim in a design patent is
for "the appearance of a – whatever the product
is usually called – as shown in the drawing".
A
Toy Design Patent
From the film. Star Wars.
Most
patented products are protected for a period of 14 to
20 years (depending on the type of patent). During this
time, the patent holder controls the production, licensing
and marketing of the product.
You cannot patent such things as mathematical formulas,
fundamental truths, services, business plans or methods
of calculation.
Once you have obtained a patent, you must serve as your
own watchdog against infringement, unless that responsibility
has been contractually assigned to a licensee.
Having the patent is no guarantee against someone’s
trying to market a product in violation of your protection.
When a patent holder finds out about this, it is his
or her obligation to file suit against the infringer.
Many people assume that they must submit a working prototype
of their product with their patent application. This
is no longer the case. In fact, many patent agencies,
including the US Patent Office, prefer working drawings
to models and prototypes.
Unless you have an idea for a product so unique and
revolutionary that it can only be demonstrated by a
working model, save your time and money. Drawings by
a qualified draftsman or engineer are usually cheaper,
can be easily duplicated, and are much more easily transportable
than large, delicate or detailed prototypes.
Whether or not you elect to proceed with a formal patent
application is a decision that only you can make. There
is also some variability in the timing of when you might
decide to move ahead with the patent process. You may,
of course, view this as the first, foundational step
toward the development of the product and choose to
begin the process, and at a minimum obtain patent pending
status, before approaching prospective manufacturers.
Alternatively, you might feel confident that you could
move forward without patent pending protection and only
begin the application process once a licensing agreement
has been secured and the final design of the product
is complete.
This latter course of action can be aided through the
use of secrecy or confidentiality agreements. This is
a statement signed by prospective manufacturers binding
them to keep any information you share about your invention
in strict confidence and prohibiting them from using
the idea without your express permission.
A document of this type should be used when approaching
manufacturers; distributors, vendors or anyone else
who might be able to profit from your idea even if you
have obtained patent pending status or already hold
a patent.
One significant issue to consider in the area of timing
is the financial implications. There are, of course,
costs associated with the application process. Government
agencies charge a fee to consider an application and
then impose additional fees for the issuance of a patent
and periodic maintenance fees to keep the patent in
force during its overall life span.
These fees must be paid whether or not the product is
making money regardless of the viability of its patent
rights. Otherwise, the patent will lapse and, should
it subsequently prove to have marketable value, the
protection would be lost. Moreover, while an individual
may certainly submit his or her own application, the
complexities associated with this process generally
lead most investors to secure the services of a patent
attorney or registered patent agent.
These professionals usually charge substantial fees
for their services. Even so, there is still no guarantee
that their efforts will result in an issued patent.
A patent application can typically be prepared and submitted
within ninety days. Thus, making a decision today to
defer the application process to a later time does not
lock you into waiting until a licensing agreement is
reached or some other significant event occurs.
Rather, you may elect to delay the patent process for
now but, should you decide otherwise, the application
for the product could probably be in the hands of the
appropriate patent office within no more than four months.
Moreover, it is not uncommon for products to be redesigned
by a manufacturer after a licensing agreement has been
struck. In some instances, the essential product concept
may remain intact but the overall design may be substantially
altered.
When this occurs any prior patent applications may need
to be revised and resubmitted. Hence, in such a situation,
it would be preferable to wait until the licensing agreement
is concluded, using the rights accorded under a secrecy
agreement to provide protection during the negotiation
stage, and then file for a patent once the final product
design is completed.
USE
CAUTION WHEN DISCLOSING INFORMATION ABOUT YOUR INVENTION.
WITHOUT SECRECY AGREEMENTS, SECRETS SHARED ARE SECRETS
LOST.
With or without patent protection, it is always advisable
to require prospective manufacturers, investors or anyone
else who could be in a position to profit from your
idea to sign a confidentiality or secrecy agreement
form before you disclose any detailed information about
the product.
As we noted, a confidentiality or secrecy agreement
obligates the other party to neither disclose information
about your product to others nor to use it in any way
without your express permission.
Furthermore, disclosing proprietary information about
your invention in the absence of such an agreement could
jeopardise your future patent rights.
The primary appeal of patents is that, once granted
by government agency, the patent gives the holder the
right to exclude others from making, using or selling
the invention covered by the patent. However, a patent
is strictly an offensive weapon. The protection it provides
has merit only if the holder chooses to use it.
Essential to any such action is an awareness that others
might be infringing on the legal monopoly the patent
grants the owner on the production, sale and distribution
of the invention.
Thus, you must serve as your own watchdog to determine
if others might be attempting to profit from your product
in violation of your patent rights. Of course, if the
product were never actually introduced to the marketplace,
the patent would have little or no commercial value.
There is, then, a distinct difference between “patentable”
and “marketable.” Overall, less than 2% of the patents
issued in the US and Europe ever makes money for the
patent holder. In many instances, the patent award notification
never becomes anything more than something for the inventor
to put in a fancy frame and hang on the wall. It may
serve as testimony to his inventiveness but no tangible,
commercially viable product is ever actually made under
the patent.
In contrast, many innovative products come into the
marketplace, and succeed, with no patent coverage at
all.
In fact, an estimated 70% of the products currently
on the market do not have patent protection.
Three primary factors drive many of the decisions to
bypass the patent process and take a new product straight
to market: the amount spent on research and development,
the product’s overall profit potential and the typical
length of product life cycles within the given industry.
Pharmaceutical
companies, for example, tend to be staunch defenders
of their patents and will not hesitate to spend substantial
sums to protect the monopoly their patents confer. This
stems largely from the huge amounts invested in research
and development to bring a new medicine to the marketplace.
In most major countries, the governmental approval process
is long and involved, requiring years of testing and
analysis before a new drug is allowed on the market.
This also eats into the patent protection time, as the
clock begins to run on the patent well before government
approval is awarded. Add to this the sunk costs expended
on medicines that never obtain approval, or are rendered
obsolete by another company product before they reach
the public, and it is obvious that a pharmaceutical
company has a substantial investment to recover once
a new medication does become available before the new
medicine shows its first profit.
Consequently, companies in such industries tend to jealously
guard their proprietary rights for as long as they can
and will not hesitate to spend whatever it takes to
keep infringers from nibbling away at their monopolistic
market position.
In contrast, a product that required little, if any,
investment in research and development, is not subject
to stringent government guidelines and is not expected
to generate enormous amounts of revenue may be a less
likely candidate for costly infringement suits and,
hence, for the patenting process itself.
Ironically, copycat products might even work to the
advantage of the original invention by expanding consumer
awareness of the product and generating wider acceptance.
This is not, of course, a recommended marketing strategy
but, in some market segments with a large untapped base
of consumers, it is conceivable that the availability
of more than one brand helps stimulate total category
sales to the benefit of all competitors, including the
original inventor and those who have copied the idea.
In the third instance, the pace at which a given market
segment moves may also influence the patent decision.
Certainly, few industries today change more quickly
than the computer software field. Yet some major products
in this category are not patented. One such product
is Netscape, the Internet browser software. The driving
force behind Netscape’s decision not to patent its web
browser was the relationship between average patent
approval time and the life cycle of this type of software.
Patent
applications in the US can easily take two years or
longer to process. Two years is an eternity in the software
field. Thus, by the time Netscape’s product received
patent protection, assuming the application was successful
the market opportunity would have been long since past.
Consequently, Netscape chose to simply copyright the
name and seek the first-mover advantage in the marketplace.
Once the initial position was secured, the company has
since gone on to continue making improvements and adding
new features to stay ahead of the competition. In this
case, marketing savvy, building customer loyalty, establishing
strong distributor relationships and keeping the product
innovative works for them rather than waiting to be
granted patent protection.
Otherwise, they might have found themselves with a well-protected
patent award on an obsolete product.
This is not to say, of course, that patents are of no
value to anyone but companies with huge R&D investments.
In a sense, a patent might be looked at as a type of
insurance.
Do the potential risks justify the costs of coverage?
For many inventors, the answer is yes.
The motivation might be based on economic analysis or
it might also be influenced by psychological factors.
Patents are still the only forms of legal protection
for an invention. Therefore, the inventor might simply
sleep better at night knowing the patent is in place
should there ever be a need to defend the claim.
Obviously, with over a million patent applications filed
each year worldwide, many companies and independent
inventors still wish to protect their ideas under a
structured patent system.
ECONOMIC FACTORS ASIDE, AN INVENTOR MAY SIMPLY SLEEP
BETTER AT NIGHT KNOWING THAT HIS OR HER IDEA HAS PATENT
PROTECTION.
Even
if a product has patent protection and a copycat product
is discovered, consideration must be given as to whether
or not it is worth the effort and expense to bring a
suit against the alleged infringer. Legal battles of
this type are typically costly and time- consuming.
Moreover, depending on the uniqueness of the invention,
infringement can be quite difficult to prove.
International
factors can cloud the outcome still further. Most developed
countries, particularly those that belong to co-operative
economic communities such as the EU and NAFTA, maintain
reciprocal patent treaties. Enforcement and co-operation,
however, can be spotty. Furthermore, an increasing number
of knock-off products are coming out of less-developed
countries that are not signatories to international
patent agreements.
For all of the positive aspects associated with a patent
award, a patent is not an absolute requirement to manufacture,
sell or license an invention.
The critical difference is that, in the absence of a
patent, you would not be able to prevent others from
making and selling the same product or using the essential
elements of the invention for their own profit.
It is, however, possible for a product to become a commercial
success even without patent protection. In fact, patents
do not protect the majority of the products on the market
today --- as many as 70% of them, are not protected
by patents.
A PATENT IS NOT AN ABSOLUTE REQUIREMENT TO MANUFACTURE,
SELL OR LICENSE AN INVENTION.
Often, of greater concern to a manufacturer are issues
such as customer loyalty, distributor relations, total
market size and the effect of competitive influences.
In some market segments factors such as first-mover
advantage, a strong brand name, access to an extensive
distribution network and the flexibility to constantly
add innovative features to existing products to keep
up with customer demands, and ahead of the competition,
are far more valuable assets than even the most ironclad
patents.
However, the only means of assuring that you at least
have the option to exclude others from utilising your
invention is to patent it.
A “PATENTED” PRODUCT IS NOT NECESSARILY A “MARKETABLE”
PRODUCT. FOR A PRODUCT TO SUCCEED COMMERCIALLY, ACCEPTANCE
IN THE MARKETPLACE IS MORE IMPORTANT THAN THE APPROVAL
IN THE PATENT OFFICE
There may also be an issue of timing involved in the
decision; not whether the patent application should
be filed but when is the most strategically appropriate
time to do so. Timing of such a decision is one only
you, as the inventor, can make.
Therefore, as you weigh the merits and demerits of initiating
the patent application process, keep in mind that “patented”
in no way guarantees “marketable” and, in the great
majority of instances, it is the latter that determines
a product’s success and brings rewards to the inventor.
If you come up with an idea to improve an existing product
on the market which has a patent already on it, then
you will need the permission of the person who owns
that patent if you are going to manufacture the whole
product with your improvements combined. Or, if your
improvement makes a significant change in the product,
you may be able to claim a new invention and get a patent
on it.
But what you can do, if you don’t want to get the rights
to manufacture the original product with your improvements
on, is to make your improvement as a separate add on
item that can be sold as an accessory.
There was a time when you could send your new idea /
invention back to yourself in an envelope that has a
recorded delivery sticker on it from the post office.
But now that is not enough. What you need is to get
a “Disclosure Document” this is what you will need to
legally document the date you had the idea first. The
U.S Patent & Trademark Office will have the right
forms for you to register the Disclosure Document, it
is around $10 and lasts for about 2 years.
The disclosure is accepted as evidence of the date of
conception of the invention, but it doesn't offer patent
protection.
