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Myths about Patents and Trademarks in startups

Posted at — May 30, 2020 by Abishek Muthian

These are some of the common myths about Patents and Trademarks in startups, I have learnt over the years working with startups, patent attorneys and of course applying patent for my own inventions.

I have a startup idea, I need to protect it with a patent

It’s natural to feel defensive about our startup idea, but patents are for invention/innovation and not for a startup idea; even if we get nightmares about FAANG stealing our startup idea.

I have an innovative app idea, I need to protect it with a patent

Most countries don’t allow patent for a software. Economic theories, methods of doing business, mathematical methods or computer programs as such are not patentable inventions in several countries.

My patent attorney said they are patentable

Did you read all the clauses in the agreement you signed with your patent attorney? The decision to award a patent to an invention/innovation lies solely with the patent examiner of the country. By the time a patent application is filed, till it comes to examination, several years and thousands of dollars would have been spent.

Although ethically, a patent attorney should explicitly convey their doubts on patentability of an invention, few rarely do. Even when Prior Art Search(Searching for conflicting patents) is conducted by the patent attorney, they are not always successful in bringing up the conflicting patents because our patent application is not drafted yet.

But, when the Govt. patent examiner does the Prior Art Search while examining our patent application, they will likely find conflicting patents if it exists.

I have paid my patent attorney, explained my invention, now all I have to do is just sit tight for a patent

An average patent attorney drafts patent for anything from innovation in a bidet to quantum computers, so they are experts in using language to define an invention but they are rarely an expert in any field of invention.

So, this requires utmost care from the inventor to work along with the patent drafter to articulate their invention with appropriate vocabulary.

Unfortunately, patent attorneys tend to force the inventor to not to be specific in describing their invention in the patent application in order to exploit the loop holes in patent examination; This may help in getting the patent, but it also enables someone else to exploit the same loop holes to file a patent for the copy of our invention by just changing the grammar/vocabulary because our patent was too generic.

I have filed for a patent, no one would copy my innovation/invention

Examination of patent takes several years, although in the meantime we could use ‘patent-pending’ tag if our patent application gets published, finding someone who is copying our invention takes proactive approach. If the copied invention is being applied for patent, we need to detect it from published journal of the patent office and raise a concern.

All these takes extraordinarily focused effort and budget.

I have applied for a patent via PCT, I will receive patent for all countries

PCT - Patent Cooperation Treaty simplifies the process of applying for a patent in several countries who are part of the PCT treaty, but the process of obtaining a patent depends upon the individual country’s patent laws.

Even during filing PCT, the second phase i.e. national phase involves filing documents for patent application in the respective individual countries requiring working with the patent attorney’s of those countries resulting in thousands of dollars of expense for each country we wish to apply for via PCT.

We can extrapolate the same process for patent examination in each of those countries.

Then there are certain countries which even while being part of the PCT, doesn’t enforce patent protection for inventions of other countries in order to protect their local businesses which copies our invention.

I have received my patent, it would prevent someone from copying my invention

Like any law, existence of a law doesn’t prevent someone from violating it; enforcement and judicial process should uphold that law. Similarly, existence of patent doesn’t prevent someone from copying our invention.

We need to find the violator, pursue an often lengthy and expensive judicial process to claim our right to the invention protected by the patent.

I’m the inventor in the patent, I can do anything with it

Unless the inventor in the patent is the owner of the patent, the inventor has no right to the patent. This is often the case when businesses file patents, where the business is the owner in the patent and the employee is the inventor in the patent.

Patents are only for protecting my invention

The main reason to protect the invention is to reap the value of the invention if needed. Patents offer commercial and strategic value to businesses.

So, patents are often used for trading them for money or for other patents in organizations apart from using it for protecting their inventions.

Patents make me look cool

Not necessarily, patent trolls have left a bad taste in the inventor/innovator community; so much so that many are choosing not to file patent for their invention.

Expenses, effort, lengthy unfair judicial trials has made several startups to not pursue patent for their invention in favor of capital efficiency.

Open-source projects doesn’t need patents

Open-source projects might need patents to protect itself from getting sued for patent infringement. Open-source projects protected by patents can prevent large organizations from stealing our project without due credit.

I have a startup/product name, I need to trademark it

Unless the startup/product has created value for its customers, so that a counterfeiter is using that startup/product name for forgery; trademarks for startup/product names are useless. Besides, in most countries just incorporating/registering our startup as a company would prevent anyone else from using the same name for their company.

Trademarking the name and logo are separate process namely wordmark and device mark respectively. Device mark might include text when it’s alongside the logo.