Why Get a Patent If You Cannot Afford to Enforce It?
Updated: May 2, 2022
By Robert Cantrell - Registered Patent Agent
Why get a patent if you cannot afford to enforce it? This is a fair question for an entrepreneur and underpins why I call patent litigation a sport of kings. Your startup, on a limited budget, and with limited ancillary resources such as time, can ill afford to fund a lawsuit required to enforce your claims. Further, litigating may deliver the opposite of your intended result, soaking up precious funds while leading to the invalidation of your claims in court.
As an entrepreneur, brute force litigation, or even presenting a credible threat of litigation, may not be open to you—at least at first. Potential infringers know this. The reason to pursue a patent anyway stems from other values a patent provides. For one, your patent claims define your invention when you engage other parties. You insert that definition in agreements you negotiate with partners, customers, and investors. For another, the term “patent pending” adds credibility to your marketing efforts. Stamping “patent pending” on your invention can be a powerful marketing tool available on the day you file. A patent can also build your confidence when you navigate your market space. You can speak about your ideas outside an NDA and establish important relationships knowing you have recourse to defend success, success leaving you better able to afford that defense.
Relationships are the key. While your claims reside in your patents, and your claims give you the right to enforce exclusivity, realizing the value of those claims depends on your relationships. But establishing those relationships may depend on your ownership of at least one patent, and then moving fast enough in the market to defend that patent from a position of success. Getting that patent requires you to file the patent application, even if today you cannot afford to enforce it.
By Jose W. Jimenez, Esq – Former Chief Patent Counsel & Registered Patent Attorney
An ancillary question may come up in an inventor’s mind upon reading this blog: what can I do to improve my chances for enforcement of my patent?
Most inventors do not have the money but they do have time. Once you file your patent application and possibly generate a prototype, its time to generate your marketing or commercialization plan. How can you sell your invention or the prospect of enforcing it if no one else understands the possibility of a strong return on investment and the likelihood of success? Remember, securing a patent does not equal success in the market, it only protects your revenue once you start to generate sales.
There is a new trend by small and medium venture capitalists of starting to invest in funding patent litigation where the business case for your invention is very persuasive and the return on investment fairly immediate. Are you ready to make your pitch?
You have the time, so get busy!
If you would like to know more, please contact us on our CONTACT page.