4 reasons not to file a patent
1. When patent protection is the end instead of the means
“If you build it, they will come” is an exception, not the rule.
A granted patent is not a ticket to sales and lucrative cross-licensing deals. Millions, if not billions of patent applications have been filed over hundreds of years. A minority of them are associated with meaningful technological advances, others have fallen by the wayside and amounted to naught.
Patent protection is not a holy grail or end destination for all your efforts. Patents are simply another type of business tool that help turn the wheels of commerce. Your great idea is worthless without execution. How will you prototype, market, mass manufacture, distribute and/or sell your invention, profitably?
Alternatively, if there are bigger players who can take care of the logistics in return for a royalty payment, have you pinned them down on signed agreements? What percentage of profits will you keep? What minimum sales volume must be achieved per quarter for an exclusive distributor to retain their exclusivity?
Having an idea is one thing – it is quite another to bring that idea into a world that wants it badly enough that you don’t sink with your ship.
Patent protection is a means to an end – it is rarely an end in itself.
2. When you can keep your invention a trade secret
As part of obtaining a patent, the inner workings of an invention must be publicly disclosed in a patent specification.
Additionally, all patents eventually expire such that the previously protected invention becomes free to be exploited by the public.
Given the above, patents are a suitable form of protection if competitors can readily reverse engineer an invention.
However, for inventions that cannot be readily reproduced by others, the invention can be kept a trade secret.
For over a century, the recipe for Coca Cola has been kept a trade secret. Had they decided to disclose the recipe in a patent specification, their product could now be readily replicated by competitors and Coca Cola would not be the global behemoth it is today.
For inventions that can be kept secret, patent protection may not be the way to go.
3. When it has been done before
To enjoy patent protection, an invention must at least be novel compared with everything that has ever been publicly disclosed before the filing date of your first patent application.
For example, a product that has been known for years but is not patented in Australia cannot now be patented in Australia; the product is not novel because it is already in the public domain.
4. When it is too soon
The patent application process is typically a long and costly one. Additionally, once you begin the process, it can be impossible to put the genie back in the bottle. You may need to continue investing in the application process or risk losing your pending patent rights irrevocably.
As a ballpark figure, you can easily spend $100K+ securing patent protection in a handful of countries. We discuss specific patent costs here.
So, before commencing the process, confide in your patent attorney, ask about the long-term process and costs, and determine whether now is the right time to start your patent application journey.
We are not anti-patent. Every day we see the commercial value that patent rights bring to Australian businesses.
However, we are pained by the poor utilisation of patents, and this usually stems from a misunderstanding of how patents fit within the much larger picture of an overall commercialisation strategy.
If this post has made you hesitant about patent protection, then it could be a sign that applying for patent protection is not presently in your business’s best interests.
For more information about patent protection, feel free to check out our FAQ page or get in touch with us below: