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   Lots of "Patent Professionals" Advice...
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   Author  Topic: Lots of "Patent Professionals" Advice...  (Read 4230 times)
ValueProducts
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Lots of "Patent Professionals" Advice...
« on: Sep 4th, 2005, 6:38am »
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There seem to be a number of patent professionals--lawyers/agents/whatever else--who post in here. I dunno, maybe that's whose site this is.  They seem to provide good advice within their field--PATENTS--but what I don't see is much information about licensing. In fact, whenever one of these lawyers posts, he/she fails to mention this at all, going instead, right to the "see a patent attorney!" suggestion.
 
My understanding (I am no expert), is that patenting, while often very useful for SOME products, is a costly ($5,000-10,000) time-consuming (3 years minimum) process that is not necessary for ALL products.
 
Yes, if you have invented an entirely new way to transfuse blood, or a new material for producing high efficiency solar cells, or a microbe that eats paper waste, you had probably better take the time and expense to get it patented.
 
If you have invented a new potato peeler, or Christmas light hook, or "majic!" car washing brush, is a patent really the necessary first step?  If new materials are involved, probably. If it's just a unique and new design, is it?
 
It is often the case (in my inexpert understanding) that such products which have typically short market lives and which are not expensive to manufacture and do not involve new materials may not require patenting so much as LICENSING (to a manufacturer) to be "first to market."  Some products lend themselves to patenting AFTER marketing.
 
For example, those little car air-fresheners (classic story)?  The SHAPE is actually patented and trademarked. But that is an extreme rarity, and they were first-to-market AND the manufacturer obtained the patent FOR the inventor once the manufacturer (and THEIR lawyers) saw it was a goldmine--and they did this at THEIR expense, not the inventor's.  Oppositely, there is the guy who invented the one-handed socket wrench.  Sears out-and-out stole the idea from him when he took it directly to them.  Took him years to sue and recover (he did, made him rich) but that was a whole new technology, not a gadget.  
 
This is not, of course, to discourage anyone with the auto engine that runs on water getting a patent, but whenever I see patent attorneys and agents insisting that anything you think of needs patenting, I get just a little nervous.
 
And no, I am not a manufacturer's rep...just a reader.
 
Mike
Value Products
« Last Edit: Sep 4th, 2005, 6:49am by ValueProducts » IP Logged
Wiscagent
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Re: Lots of "Patent Professionals" Advic
« Reply #1 on: Sep 4th, 2005, 1:32pm »
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Mike -
 
Generally I agree with you.  I'm sitting here watching TV (trying to find out if the Yankees-A's game will be on tonight) and an ad came on for some invention promotion firm.  It was one of these "If I only had a patent!" scams.
 
I commented to my wife that most people have no idea what a patent does.  Apparently there is a misconception that having a patent somehow ensures business success.
 
I have seen many postings from patent professionals on this web site that carefully explain that a patent just grants the patentee the right to sue for patent infringement - and collect damages or obtain a court order to cease the infringing activity.  A patent certainly does not ensure business success or even the right to practice an invention.
 
As you wrote Mike, for many businesses, patent protection has little or no value.  Nevertheless all that having been said, this is the Intellecutual Property Law server.  When someone asks a question on how to obtain a patent I think it is appropriate to answer that question - and often the answer is a straight-forward explanation of the law.  On the other hand, when someone asks about the value of a patent that is a far more difficult question to answer, it often requires a good understanding of the business, market, and technology; so the "Go see a lawyer" response may be entirely appropriate.
 
Richard Tanzer
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JimIvey
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Re: Lots of "Patent Professionals" Advic
« Reply #2 on: Sep 5th, 2005, 1:07pm »
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I posted this to the OP's similar question in another topic.  I thought it'd be good to include here as well.  I've cut out the part about licensor|licensee as I think that point's more clear here.
 
on Sep 5th, 2005, 11:28am, JimIvey wrote:
... to get money from others, you would have to have some right to exclude them from using your idea.  As a patent attorney, I naturally lean toward patents as one way to obtain the right to exclude others.  So, your statement appears to be a non sequitur -- akin to saying, "I don't want to the right to exclude others from using my technology; I just want to selectively grant permission to use it."
 
I suppose you could mean that you want to rely on trade secret protection.  That's possible.
 
But you should understand the import of Mr. Clark's statement: the value of your permission to use your idea is derived from your power to exclude others from using your idea.  To build that value, you have to think about how you might build that power to exclude.
 
I hope that's helpful.

 
Now, having said all that, I understand that some people have success in granting licenses to use unpatented technology.  I believe they rely solely on trade secret protection.  If anyone succeeds in collecting royalties on completely unprotected technology, I'd really like to meet such a person!  That  would certainly poke a hole in the "rational chooser" and/or "perfect knowledge" assumptions of Smith/Friedman and capitalism.
 
As for how very short term products ever get to market, my understanding is that the idea owner takes it to market themselves (or the idea comes from within the same company anyway).  To get some other company to market your idea and pay you money, look at what you must convince them:  first, I have an idea that's more valuable than anything you can come up with yourself.  Second, I want you to do all market research and refine the idea into something to sell -- refining my vague idea into a product with every detail filled in and an actual product made.  Third, I want you to assume the risk that it won't sell -- sure, I'll lose too, but I'm not going to cover your losses on top of that.  Fourth, if all your hard work and assumed risk pays off, I want you to give the profits to me (or at least a subsantial piece of them).
 
That's a very hard sell.  Some have made that sale, but I'd say they're few and far between.
 
Now compare that to the following:  first, I have a US patent that covers a substantial part of your existing business.  Second, if you don't have a legitimate argument that you don't infringe or that all of my claims are invalid, you may have to pay me 3 times the reasonable royalty for my idea that you already use.  Third, there aren't any viable alternatives that don't infringe my patent.  Fourth, I'd like a reasonable royalty now.
 
The latter is much more persuasive -- and still doesn't work all the time.  I sometimes wish it was as easy as everyone thinks it is -- declare your great idea and collect all the checks.  But that just isn't how it works.  
 
Regards.
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ValueProducts
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Re: Lots of "Patent Professionals" Advic
« Reply #3 on: Sep 6th, 2005, 4:05pm »
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[quote author=JimIvey  
 
Now, having said all that, I understand that some people have success in granting licenses to use unpatented technology.  I believe they rely solely on trade secret protection.  If anyone succeeds in collecting royalties on completely unprotected technology, I'd really like to meet such a person!  That  would certainly poke a hole in the "rational chooser" and/or "perfect knowledge" assumptions of Smith/Friedman and capitalism.
 
As for how very short term products ever get to market, my understanding is that the idea owner takes it to market themselves (or the idea comes from within the same company anyway).  To get some other company to market your idea and pay you money, look at what you must convince them:  first, I have an idea that's more valuable than anything you can come up with yourself.  Second, I want you to do all market research and refine the idea into something to sell -- refining my vague idea into a product with every detail filled in and an actual product made.  Third, I want you to assume the risk that it won't sell -- sure, I'll lose too, but I'm not going to cover your losses on top of that.  Fourth, if all your hard work and assumed risk pays off, I want you to give the profits to me (or at least a subsantial piece of them).
 
That's a very hard sell.  Some have made that sale, but I'd say they're few and far between.
 
Now compare that to the following:  first, I have a US patent that covers a substantial part of your existing business.  Second, if you don't have a legitimate argument that you don't infringe or that all of my claims are invalid, you may have to pay me 3 times the reasonable royalty for my idea that you already use.  Third, there aren't any viable alternatives that don't infringe my patent.  Fourth, I'd like a reasonable royalty now.
 
The latter is much more persuasive -- and still doesn't work all the time.  I sometimes wish it was as easy as everyone thinks it is -- declare your great idea and collect all the checks.  But that just isn't how it works.  
 
Regards.
[/quote]
 
Jim:
 
This, if nothing else, shows us why it's very difficult for anyone who may be very expert in his/her own field to put on the hat of another and find it quite as good a fit as his own.  Hence, all those "watch your hat and coat" signs.
 
America is a consumption-driven place. We love stuff.  Just walk into a Walgreens and look at all the utter CRAP at the cash registers.  Of course, you and I, we NEVER buy this crap, but somebody does, and  somebody else makes money off those sales (this is not Europe).  These somebodies are typically manufacturer's who, just as you know yours, know THEIR bidness.  They see a salable, potentially profitable piece of crap come in through the transom, they might just pick it up. Bill Gates kinda money, it ain't, but it's money. And the companies that make that kinda crap are ALWAYS out looking for MORE crap because they know that Americans like to buy crap and they know what kind of crap they market.  
 
Let's take your steps in MY direction.
1. I come up with an idea for a flatulence-powered cigarette lighter shaped like a pair of butt cheeks.  A sure-fire seller in some markets!
2. I spend 3-5 years and $10,000 getting  a patent for my cigarette lighter.
3. I am fully protected!
4. I sell my lighter to XYZ Crap, Inc. who manufactures it for $.34 in China, and sells it for $2.99 in Walgreen's and maybe a few other purveyors of fine crap (the Holy Grail being WalMart...but let's pace ourselves).
5. I get some up-front money and a 3-8% royalty on every lighter they sell (more likely 5%).
6. They sell, oh, 10,000 of them during the life of the product (maybe a year). I pocket about enough to take a quick trip to Vegas as long as I stick strictly to the one-armed bandits!  
7.  Maybe, 2 years from now, they will re-introduce my lighter and I'll pocket another couple of grand.  Maybe it will become a permanent seller at Walgreen's and every year for the next 25, I'll get a royalty check fully big enough to treat me and 1 of my closest friends to  dinner (with ALL the trimings!) at Mr. Steak!
 
And just think, NONE of this woulda been possible had I not waited the 3 years (minimum) nor shelled out that $10,000 AND, nobody was able to steal my secret fart technology!
 
I am golden!
 
If I think this is good, I am also very stupid.
 
The point is, more products go to market from Joe and Jane Average by being LICENSED to fine mfg's of crap, than those being patented.  Lots and LOTS of folks think the PATENT is the Holy Grail.  It ain't. Finding someone to BUY your crap off you is the Holy Grail.  A patent does nothing but protect you from others ripping your idea off, as you say it neither guarantees the product is saleable, nor does it conduct market research, etc.  But companies that buy crap off developers DO do all this stuff and may already have some on hand when you come knocking to sell your flatulence lighter.  
 
Those in here looking for advice on what to do now that they've invented an new ceramic material to coat the space shuttle in, or a machine that turns water into gasoline are probably very well-served by advice to get a patent.  Those who've "invented" a flatulence-powered cigarette lighter are better served by skippint the patenting process and going directly to manufacturers of fine crap.
 
Mike
 
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ValueProducts
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Re: Lots of "Patent Professionals" Advic
« Reply #4 on: Sep 6th, 2005, 4:16pm »
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on Sep 5th, 2005, 1:07pm, JimIvey wrote:
I posted this to the OP's similar question in another topic.  I thought it'd be good to include here as well.  I've cut out the part about licensor|licensee as I think that point's more clear here.
 
Regards.

 
What protects the "inventor" in cases such as this (sorry if I am missing this elsewhere; this is not a particularly easily-navigated forum) is the first-to-market rule. Given, you may put your money on the wrong horse in that case (a less dedicated co. that immediately loses its momentum to someone else), but just as none of us get out of this life alive, none of us get through it without risk.  Again.  This is not Europe.
 
If the geegaw you "invent" is sufficiently marketable (I am talking mass marketing here, not some new scientific or engineering instrument with very limited markets) and the company you went with to market it is sufficient, it will probably be quickly stolen, but you'll be there with the first and the (market-perception) "best."  
 
Personally, I'd rather take the risk of someone stealing such an "invention" than see it moulderin on a back shelf in my garage while I rack up the mounting bills and grow long of tooth and gray(er) of beard as it wends its way through the patenting process.
 
Best,
Mike
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