Do I Need to Patent All of My Ideas?

 “It almost goes without saying that when you are a startup, one of the first things you do is you start setting aside money to defend yourself from patent lawsuits, because any successful company, even moderately successful, is going to get hit by a patent lawsuit from someone who’s just trying to look for a payout.” – Charles Duhigg

You need to patent all of your ideas in order to protect your intellectual property, right?

No. Patents are not the only form of intellectual property (IP) protection.

So how do large and small entities decrease the probability of being slapped with patent litigation upon a successful product launch? Start by asking yourself this:

Does the opportunity afforded by this idea extend outside of my company’s walls? Is it likely that my competitors will cite this idea, my idea, over the coming five to ten years?

YES? Then file for a patent as fast as you can. The cost for filing ranges from $1,000 to $10,000, depending on your use of a patent attorney or agent to write and file your patent. Expedient filing secures your place in line and you still have 12 months to make modifications.

NO? Then you still have other effective options for protecting your IP. Depending on the idea/product, you can pursue trademarks, copyrights, trade secrets, and defensive publishing.

Defensive publishing is an intellectual property strategy used to prevent another party from obtaining a patent. This cost-effective strategy consists of disclosing the enabling description of your invention, so it becomes prior art. For a few hundred dollars your company can effectively:

  • Secure Freedom-to-Operate
  • Block a competitor’s patent from issuing
  • Reduce unnecessary prosecution and filing expenses
  • Ring-fence its foundational patents

According to data from Patent River, since 2005 there have been 338 rejections in full (complete rejection), or in part (specific claims not allowed), as a result of the prior art found by examiners searching only defensive publications, not patents, in the IP.com Defensive Publication Database. In addition, 5,079 unique citations from applications/patents, have cited documents found (by both Patent Examiners and Applicants) in the IP.com Defensive Publication Database as prior art, since 2003.

Despite this proof of defensive publication as a viable option, it remains an underutilized component of most entities’ IP strategy. This is only because they do not yet know the benefits. You can still practice prosecuting your core differentiating technologies as patents. At the same time, disclose and protect your non-core, non-commercial, and operational innovations as prior art. Then, you can:

  • Be free to practice technology enablement(s)
  • Reduce your overall infringement risk profile
  • Defend against assertion of overly broad patents
  • Strengthen your foundational patents in the portfolio
  • Build a repository of prior art that ultimately serves as a shield to non-practicing entities assertions

A solid defensive publication strategy is easy to implement. Paths are already in place to lead you to a cost effective IP strategy that will not only reduce your risk of future lawsuits, but also strengthen your overall portfolio, and protect the interests of your stakeholders.

Questions? Contact defensivepublishing@ip.com