“But I have a patent! How could they do this?”
This is the battle cry of inventors and corporate executives alike, when they see a copycat product and find out there is nothing they can do to stop it. This statement also is the result of a limited understanding of how patents work.
It’s perfectly understandable that someone would respond like this when faced with a copycat product. It can be enraging to know someone “stole” your invention or product idea, when you thought you were protected.
But the mechanics of what a patent protects can be rather complicated. Few patent attorneys explain what is necessary, so that their clients fully understand the boundaries of protection under their patents.
The question you need to ask is: “Why doesn’t my patent give me the right to stop them from copying me?” —or— “I thought my patent covers the concept, and they copied my concept! How is that possible?”
The answer lies in understanding exactly what the patent “covers.”
The first thing to understand is that there are different types of patents, and they offer drastically different types and levels of protection.
The two main types of patents are design and utility.
- Design patents only protect the ornamental appearance of a functional item. They are useful in preventing someone from directly ‘knocking off’ a product, by unimaginatively copying it’s appearance in full detail. However, in protecting a functional concept itself, they are not valuable. The above battle cry, “But I have a patent!” is very often heard from people who own a design patent and don’t understand the limits of its protection.
- Utility patents protect a functional invention. Generally, if you have a functional invention, the goal is to get a utility patent. However, just because you have a utility patent, that doesn’t mean your invention is protected. Patent claims can be “broad”—protecting a whole concept that would be difficult for someone else to duplicate without infringing your patent, or “narrow”—protecting only a very specific configuration of your invention. In other words, the claims in your utility patent can make the difference between having a patent for any three-legged chair, and having the patent for a very specific configuration of a three-legged chair. The latter would require a person to copy your very specific configuration in order to infringe the patent. The value of such a patent then, would be quite limited. It would only be valuable to someone who believes that this very specific configuration would be important to consumers.
Clearly then, the patent claims can make the biggest difference between a patent that is valuable and a patent that is worth very little.
It takes a lot of skill and experience for a patent attorney to draft a claim that is not only broad (protecting the concept), but also will be approved by the United States Patent and Trademark Office (USPTO). Other than the skill of your attorney, however, the biggest factor in determining whether you get broad patent claims or narrow patent claims is the already existing patents that are closest to what you have. These patents are known as the “prior art.” The rule is, the claims can be only as broad as the prior art permits. It makes sense; the USPTO will not allow you to patent things that existed before your invention.
So, of course, your patent attorney must be good at drafting broad claims. But to do so, the attorney must first locate and interpret the patents most similar to yours. A good understanding of the prior art, then, is necessary for them to draft the claims of your patent around the prior art.
It’s also important for your patent attorney to understand the practical aspects of your business. With this understanding, when they write the patent claims, they are taking into consideration what other people in the same industry might try to do in attempting to get around your patent.
So, can you get a valuable patent for your invention/product idea? The best way to find out if you can get a valuable patent is to find the closest prior art to your invention. And the best way to do that is to find an expert who is skilled at understanding and explaining the differences between your invention and the prior art.
Knowing that you can likely get a patent is certainly good news. However, it’s more important to find out how broad your patent can be, because that will determine the value of your patent.