How to protect your idea in real world? would patents really work?
Updated: Aug 21, 2021
How to protect my idea? this is a question a lot of people asks about entrepreneurship and product launching. If I can not protect my idea, what is the point of invention then? The other day someone asked on Reddit this question about how to protect a toy concept. How do i protect my idea as good as possible?
Related read: How to keep an idea secret. What is difference of knowledge and knowhow?
The best protection for an idea is to bake it into the product. An idea really belongs to the world. What belongs to you is details on how to implement the idea.
For example, coca-cola's secret recipe is kept, without any patent filed. It is listed as "natural ingredients". What makes it impossible for anyone to copy Coca-cola is the brand power and customer trust, and easy availability everywhere you go.
Reddit user u/toxn1337 from Germany asked a question:
I got a idea for a relatively simple product. It is a gadget which is kind of similar to a fidget spinner. Maybe it can create absinkest hype as the fidget spinners did some years ago. I have read the story of that women in the us who had the pattern rights over years and than she couldn’t afford the costs for it anymore and immediately some companies made millions with it. Also the big toy companies wasn’t interested in it.
So if I got a similar idea for a product how can I protect it before I start and produce and put effort in it ? I am based in Germany and here you can register a design pattern but for non technical products you can’t sign in patent. Or better said what would be the best way to protect my idea as good as possible ?
There are five ways you can keep your idea protected (meaning others can not copy you):
One is to sit on it and never do anything about it.
Two is to have a patent and then hire lawyers to defend you.
Bake your secret into the product, as recipe, knowhow of production, etc. Build the barrier of knowhow, commonly called barrier of entry or moat. (Watch a youtube video).
Another way is to be famous for it, so that you are way ahead of competition.
You can wrap a business model around your product, for example McDonald Restaurant.
There are several important cases in history that would serve as guides.
Famous story 1: Whitney Gin for de-seeding cotton, where competitors ferociously copied the idea. The gin ingeniously removed cotton seed from the cotton fiber. The patent laws of the time had loopholes that made it difficult for Whitney to protect his rights. Even though the laws were changed a few years later, Whitney's patent expired before he ever realized much profit. (link to history channel article)
Famous story 2: The finger fidget (how the "inventor" did not get rich)
Famous story 3: The electronics computer, Honeywell Inc. v. Sperry-Rand Inc.
Famous story 4: The light bulb, where Edison was suit 500 times in a year.
Famous story 5: The German Samwer brothers' cloning empire
Famous story 6: Myspace vs. Facebook, where Facebook used real user identify whereas Myspace used hidden one. People liked real identify better.
Many inventions were made in the industrial age, including steam engine, light bulb, electrical power system, and internal combustion engine. They are worth a detailed study. Most of our schools teach advanced theory but they should always do students a big favor by studying "old techs".
Steam engine wikipedia page discusses the patents process and fierce competition to capture lightning in the bottle.
In Watt's case, the boring machine invention for making precision bores were critical to his success. A lot of the difficulty of replicating the steam engine is not the idea, but how to bore holes through steel.
Thomas Edison was the first to use vacuum in the light bulb. The invention of the vacuum was critical to Edison's success.
Edison and Joseph Swan both invented the light bulb, using the same idea: carbonized filament, vacuum. However, Edison used a better vacuum. In fact, he filed many patents on vacuum pumps, again based on advancements in a neighbor field. He also tested thousands of materials around the globe and eventually used a bamboo from Japan.
To keep an idea yours, you don't protect it, you do it.
There are also six cases that I personally involved, and here are what they tell about patents.
Patents are "freedom to operate", not am embargo against other operators.
In the end, who has money to high better lawyers wins the patent case.
The patent system is a fence made of paper.
A patent has the inventor and then the assignee. If you are employee of a company and you file for a patent being the assignee, you will get into legal trouble with current employer if you succeed. It is conflict of interest.
If patent submission is a competition, then you run against your rivals in dark tunnel. A patent first go into six months of "dark tunnel" when it is reviewed. No one knows your submission and you know of no others submissions and their status. Many patents are submitted at roughly the same time.
Through the patent process, the USPTO and other patents agencies collect money. They are not the police and lawyer, they are just the paperwork people. One claim for xyz bucks per year. If you stop paying, patent gone. Want more claims? pay more. In the end, when the PTO people retire and become lawyers, the fight the real validity of the patent in court.
Patent Case 1: A professor's innocent remark at seminar
One time my friend Prof. Chad was giving a talk at a conference. He mentioned "my group just filed a patent yesterday". Well, this becomes a big problem because the "priority date" of a patent is often the "filing date". A friendly corporate competitor's representative was in the audience. He informed his company to update their patent priority date to their lab note book entry, which was earlier than the professor's.
Note: When two ideas are similar, priority date is critical. Keep it safe, keep valid proof.
Patent Case 2: Startup meeting Philip-Morris
One time around 2008, electronics cigarette was a growing business field with the promise of easing smoking cessation. A friend of mine, founder of e cig maker in Chicago, had a patent about ecig charger stand, where the charger is the stand. Armed with this patent, which he has filed but not granted, he went to Las Vegas to meet with Philip Morris representatives about co-branding. At the evening after the meeting, my friend was very happy because the meetings went well. On the second day, things completely turned around. Philip Morris lawyers has better access to patent data. They found a Rejected Patent which was never circulated in public but was considered public document. In this rejected patent the charger-stand idea was mentioned. Henceforward, my friend's patent would never stand, because a "public document" bearing this idea has been circulated and became "public knowledge", even though the patent was rejected and never published. In the end, Philip Morris decided to work with the upstart JUUL.
Patent Case 3: Smoke alarm case bogged down by dictionray
Once I was a technical outside witness for the Nest smoke alarm case. A judge in Chicago was in charge of this case, brought by a fire alarm manufacturer against the upstart in California, Nest. The contention was a voice alarm feature where the alarm would say "bedroom fire". The team defending Nest was from New York and a well established law firm was on the side of the long established player. In the end New York Lawyers armed with dictionary started to debate the meaning of the word "electronics" in the "description" section of the patent. The case degenerated into a stand still and the judge dismissed the case.
Patent Case 4: Burning night oil to save IPO
A good entrepreneur find a quick fix to a patent and either delay the pending patent dispute or put it off indefinitely. A friend of mine, Xing Y., was working for a startup that was about to go IPO. However, two days before that a competitor filed for a law suit claiming the key patent of the company has a conflict with a "prior art" of the company. Xing was able to work with lawyers and find a clever work around, and modified their patent application the night before the IPO. Needless to say, they went public and now has a war chest that can be used to hire any patent lawyer they wang.
Patent Case 5: How Edison beat 500 lawyers and lost to Westinghouse
Thomas Edison was a great inventor, he was able to improve on the idea of electric light bulb and increase the life time of a bulb from a few seconds to a couple of days, by using ultrahigh vacuum machines that he invented. After Edison's light bulb was disclosed, he was sued 500 times in a year. Edison Electric Co. vs. United States Lightning Co., case allowed Edison to continue making the light bulb, even though the idea was provided to the Edison company by Gobel. (Link)
Patent Case 6: X company did not defend itself
A small startup company hold an important patent, however, the firs time another company infringed on its patent right the company did not have money to defend itself. When a big company decided to infringe on the patent rights, the company took the big company to court. However, the case was dismissed on the basis that the company did not sue infringer the first time.
Patent Case 7: Microphone police raid
The Knowles company was the first time in the world to come up with a MEMS microphone product. It is much smaller than traditional ECM (electrolytic microphone) and can be mass produced. The Chinese company Goertek translated Knowleds United States patent filing into Chinese language and filed Chinese patents under the Chinese utility model patent, which virtually is always approved (link). When Knowles begin to operate in China, Goertek was able to sue Knowles in Chinese court based on the translated patent paper. Goertek is now a big microphone player.
See the article "Knowles defending patent, saying fair trial in China impossible".
Patent Case 8: Why no one owns electronics computer patent?
The Electric Computer patent was disputed by the ENIAC team (https://en.wikipedia.org/wiki/ENIAC). However, it was disrupted by the Iowa State University professor who claimed ENIAC chif designers got the inspiration of the computer after visiting his laboratory. In the historical Honeywell, Inc. vs. Sperry Rand Co. case in 1973, the court decided that no one really owned the rights to modern computer invention. This opened the door for computer to become fair game for many competitors. At the same year, both Bill Gates and Steve Wozniak dropped out of university to start the Microsoft and Apple Computer Co.
Patent Case 9: Every word never printed count
A patent is a legal document that consists of introduction, description, and claims. It is more like a scientific research paper in the description part. It turns out, that when the patent is first filed, the PTO officer will ask a lot of questions, and the lawyers would answer. Some times changes are made to the document.
However, every conversation between PTO and the lawyers are recorded. All these conversations, all the words you use in the description could be used against anyone. For example if someone had a word in the description but not in the claims, it leaves questions about whether there is firm understanding on the inventor or not.
Anyways, there is a lot of loops and a lot of wiggle room.
What exactly is a patent and a design patent?
A patent is a method, whereas a design patent is a product. For example, a patent on matches would be "attack flammable materials at the end of a stick and strike it to make fire". Any one can add to this, for example long matches, short matches. But in theory they all work under the umbrella of the big patent.
Protecting patent right is an art. There are lawyers well trained on crafting the language from day one of the filing. However, the point of the patent is really to illuminate an idea. How to protect a light bulb in the open is not as easy as you think.
A patent is a book in the open, anyone can read it, circumvent it, improve it. If A has a patent, and B knows how to make money from the patent, then B can hire lawyers to defeat A IF A sues. (A still has to pay for the team of lawyers).
Why patents can not protect you?
Patents really gives you the freedom and a pass. It is a "right to operate" paper, much like a passport for an international travellor. It is the beginning point of a product. A trip still needs tickets and visa. The "ticket" in this case is your capital. The "visa" in this case is your quitting your job and go after the first "fail forward", the real learning and real success.