Potentially quite a bit. If you have invented something worthwhile, there will be lots of people who will want to take it from you. Procuring a patent is a great first step to take toward protecting yourself. If an inventor does not procure that patent, then he or she is entering a potential future battle entirely unarmed, making stopping a competitor’s theft very difficult. Now, even if you have a patent, the only way you will truly be protected is if you are willing to enforce it. While (I believe, but am not positive) some jurisdictions around the world have criminal statutes for intellectual property violations, the United States does not recognize patent infringement as a criminal offense. As such, civil litigation is generally the only way to physically stop someone from infringing your patent. Knowing that your competitor is infringing your patent is crucial in these situations, and will give you conviction during a prolonged litigation battle. However, it is important to note that litigation can be very costly, even on the low end costing one side around a million dollars to litigate through trial.
There are many reasons for the high costs associated with litigation, such as attorney’s fees and the costs to hire expert witnesses. However, one reason that predominates in very high stakes patent litigation is the larger number of patents being asserted by the parties. It is very often the case that one patent is not enough to properly protect an inventor. If, for example, the inventor invented a fighter jet airplane, and the year was 1850, truly protecting what the inventor invented would require a significant number of patents. The inventor would need at least one patent on the navigation systems, at least one patent on the lift systems, at least one patent on the landing gear systems, and at least one patent on the fuel mechanisms, to name a few. The reason for this is that there would be multiple inventions that comprise the fighter jet airplane, multiple inventions which would be way ahead of their time, and would have the potential to significantly disrupt markets. Because of that potential, there would unquestionably be an incredible amount of people who, though not all malevolent, would be chomping at the bits to make, use, or sell what the inventor had developed. Keeping all of them away could only be done in one of two ways, asking nicely, or procuring and asserting significant numbers of patents. The high number of patents involved would generally increase the costs during litigation, as attorney’s would have much more information to scrutinize and fight over.
What needs to be done in situations like these, and in any situation where an inventor has invented something new, is a cost benefit analysis. In the fighter jet airplane in the year 1850 example, if the inventor determined that his or her innovative efforts had the potential to generate $50 million in revenue for his or her company in the next several years, that his or her competitors would capture $30 million of that $50 million if he or she did nothing, that procuring a tremendously robust patent portfolio on the entire fighter jet airplane would cost $500,000, and that asserting the patent portfolio against his or her competitors would cost between $5 million and $15 million, then investing in large numbers of patents and actually asserting those patents makes perfect economic sense for the inventor. Security costs money, and in this situation, paying for and using a good security system in the form of patents will have kept the inventor’s competitors away and prevented them from stealing large sums of money that the inventor had the right to realize.
On the other hand, the economies do not always favor this approach. Sometimes they favor procuring only one patent, one patent which is threatening enough to a competitor in a smaller market. In this situation, that patent may not even need to be asserted. Simply having a weapon, one that does not need to be fired, can often be intimidating enough to most who might otherwise try to steal from you. Further yet, sometimes procuring even one patent may not be in an inventor’s best interest. If the inventor’s invention, in the year 2020, only has the potential to generate an additional $40,000 for his or her company, investing $20,000 – $30,000 in a patent likely does not make sense.
In summary, patents, like weapons, can be used to protect. If a soldier goes into battle unarmed, he or she will stand a much greater likelihood of an unfavorable outcome than otherwise. If an inventor goes into the marketplace with his or her invention, and is without a patent, he or she will also stand a much greater likelihood of an unfavorable outcome, in this situation the outcome would be having a competitor capture market share that the inventor is entitled to. Finally, a cost benefit analysis must always be done by the inventor to determine how robust the protection should be. If the inventor has invented a moderately clever new mouse trap, a single patent may be all that is needed. If the inventor has invented a fighter jet airplane in the year 1850, an armada of patents will likely be in order, should the inventor want to thoroughly secure the intellectual space that he or she has created.
This article was authored by John P. Powers, and is intended to keep readers current on matters affecting intellectual property and is not intended to be legal advice. If you have any questions about its content, please leave a comment below.
©John P. Powers, 2020, all rights reserved.