Companies that want to protect their intellectual property with a patent must be wary of certain false truths about the process, according to an intellectual property attorney.
Intellectual property is a tech company's most valuable asset. As a company grows, it must define an intellectual property strategy to ensure the security and sustainability of its most innovative ideas, according to Jennifer Wang, an associate mechanical technologies attorney at intellectual property law firm Wolf Greenfield.
"It is important for a company to protect its intellectual property because doing so can stop or deter competitors from taking and using the company's own innovations, helping the company maintain a competitive edge," Wang said.
Many companies seek patents for new innovations. However, several misconceptions about the patent process exist. Here are the top five misconceptions about patents that can protect your innovations, according to Wang.
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1. The meaning of "patent pending"
The phrase "patent pending" does not mean anything beyond the fact that a patent application has been filed, Wang said. "The mere fact that a product may have an associated patent application pending, or even an issued patent for that matter, does not mean that the product works better than existing products," she added.
For example, in January, Microsoft filed a patent for a technology that allows users to operate apps with their minds while wearing a headset that measures neurological activity. While intriguing, the filing does not mean that a product is definitely forthcoming.
2. Filing a patent application does not mean you have an enforceable patent
Businesses sometimes confuse pending patent applications with actual issued patents, Wang said. "We often hear folks say, 'I have a patent on XYZ,' Wang said. "Many times, what they really have is a filed patent application that is pending, or in some cases, the patent application may have even been abandoned."
3. A "provisional" patent application is not an enforceable patent
There is no such thing as a "provisional patent," Wang said.
"This term should never be used," she added. When people refer to a provisional patent, they actually mean a provisional patent application, which is simply a filing date placeholder. It does not by itself mature into an enforceable patent, Wang said.
If a company in the US files a provisional patent application, a non-provisional patent application or a Patent Cooperation Treaty (PCT) application must be filed claiming priority to the provisional application. Or, as an alternative, the business could convert the provisional application into a non-provisional one if they are still within the one-year time period, though this is uncommon, Wang said.
"Either way, if nothing is done within a year, the provisional patent application expires and becomes essentially void," Wang said.
4. A PCT application on its own does not mature into an enforceable patent
A PCT application, sometimes called an International Patent Application, does not by itself mature into an enforceable patent, Wang said.
Similar to a provisional patent application, a PCT application is a placeholder that preserves an applicant's ability to file the application in many countries, including the US. After the PCT application is filed, the applicant must take active steps within a set period of time to submit subsequent follow-on filings in each country to eventually obtain enforceable patents. If these follow-up filings are not completed, the PCT application will expire and essentially become void.
5. Freedom to operate vs. patentability
This is perhaps the biggest misconception about patents, Wang said: A patent to an invention does not give you the right to make, use, or sell that invention. The patent only gives you the right to stop others from doing so.
"Oftentimes we will hear the phrase, 'I should be able to sell my invention because I have a patent on it!'" Wang said. "It may be surprising to hear that this statement is wrong."
Wang offered an example of bicycles and tricycles. If you lived in a world where only bicycles had been invented, and your company invented the tricycle, you could gain a patent to a transportation device with three wheels. But even with that patent, your company would have to see if others have a patent that covers your tricycle product before selling it yourself.
If you discovered that the bicycle inventor had a patent for transportation devices with two wheels, which your tricycle does have, the tricycle would not have the freedom to operate over the bicycle patent. However, if the bicycle maker wanted to start selling tricycles, your patent would stop them from doing so.
"The end result is that no one can sell the tricycle," Wang said. "In situations like this, parties will often cross-license their patents, or otherwise agree not to sue one another, to permit at least one party to sell the product."
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