To Patent or Not to Patent? That is the Question.

Image: 1882 United States Patent for a Stethoscope. Courtesy of the United States Patent and Trademark Office. Public Domain

Whether or not one chooses to patent an invention depends upon his/her motivations and goals for the life of the proposed patent. One who chooses to patent an invention may take advantage of the some of the benefits of patent ownership (e.g. exclusivity in use and restricting others from use, licensing rights, revenue and profitability from the patented invention, and public faith and trust in the legitimacy of the invention). However, one may choose not to patent and invention because of the many possible disadvantages to patenting inventions (e.g. problems with patent trolls, expense and contentiousness of litigation).

There are several advantages and disadvantages of patents. The advantages of protecting inventions through patents include: (1) exclusive ownership of an invention (Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 484 (1974)); (2) the right to restrict others from exploiting (making, using, selling, or importing) the invention in an unauthorized manner without permission from the patent holder (35 U.S.C. § 154(a), 35 U.S.C. § 271); (3) patent licensing rights; (4) the right to profit exclusively from the invention; (5) public awareness of the types of inventions that are in the public sphere through formal patent filings; (6) decreased costs of licensing for commercial patent applications; (7) the ability for patent owners to bring legal action against patent infringers in court (35 U.S.C. § 271(a)); (8) the patent prosecution process provides public reassurance that an invention is a legitimate and worthy invention for public use (a patent increases the credibility of the invention); (9) increased awareness of ongoing research in the field of the patented invention and beyond; (10) encouraging increased competition within the field of the patented invention; and (11) encouraging innovation in the field of the patented invention and beyond.

Image: 1882 United States Patent for a Stethoscope. Courtesy of the United States Patent and Trademark Office. Public Domain.

Disadvantages of patents include: (1) Patent right exclusivity lasts only for a limited amount of time. Enzo Biochem, Inc. v. Gen-Probe Inc., 323 F.3d 956, 970 (Fed. Cir. 2002); (2) The patent prosecution process can be lengthy and arduous; (3) Patent prosecution can be expensive; (4) The patented invention may attract competitors; (5) Competitors of the patented invention may bring legal action against the patent owner; (6) Patent trolls (entities which engage in frivolous, vexatious, or false litigation against the patent owner) may repeatedly bring legal action (patent infringement claims) against the patent owner; (7) Patent trolls may deceitfully attempt to earn revenue or profit from the patent owner’s invention; (8) Patent litigation can be expensive, depending on the type, complexity, and nature of the patent lawsuit.

Neither decision – to patent or not to patent – is necessarily right or wrong. It is all about what the patent owner believes is best for him/her.

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