Does Your Business Need a Patent?

In the course of running our businesses so many things demand our attention and resources that addressing “intellectual property” can be left on the back burner. Patents are among the most important types of intellectual property, yet common misconceptions often lead business owners to mistakenly regard patents as irrelevant or of limited importance in their particular business. This can lead to lost opportunities or expensive problems.

In simple terms, a patent provides the right to exclude others from making, using, or selling a new and useful invention. The invention can be a device, process or chemical compound. A patent does not provide a positive right to practice or use an invention. Rather, it is solely the right to exclude others. For example, a part of one person’s invention may have been patented by someone else, who can then prevent the use of that part.

A common misconception about patents is that an “invention” must be a dramatic or revolutionary innovation, such as the telephone, the transistor or a blockbuster drug, in order to be patented. This is not the case. The vast majority of patents cover incremental improvements to existing technology. Thus, if your business has developed any technical improvement to a product or process or uses any unique know-how, you may be able to obtain a patent.

Patents can provide significant benefits for your business

First and foremost, a patent can keep competitors from copying what you do. Patents can thus serve as an important tool in preserving and expanding market share. You can maximize your return on engineering, research and development expenditures and on the expertise your company has attained.

Second, there is the potential for generating royalty revenue through granting licenses to your patents or selling them outright. Sometimes, a well-drafted patent can apply to products or processes outside of your market, allowing you to both preserve your own market share while generating extra revenue.

Third, patents can serve as useful assets to show to potential investors, partners or purchasers of your business. Patents assure them that your business model is protected.

Next, owning patents can act as a shield in the event a competitor asserts its patents against you. There is truth to the old saying that the best defense is good offense. The prospect of facing a counter-suit for patent infringement from you can be a potent bargaining chip.

Finally, the process of obtaining a patent itself can be instructive because it involves detailed searching for patents and other technical publications related to your invention, including those from other countries. You can often get a better understanding of where you stand in your technical field and use this as a factor in directing your development efforts.

As with any valuable asset, obtaining a patent involves cost. This cost will rise as the complexity of the invention increases and if protection is sought in multiple countries. Thus, in additions to legal and technical issues, a business case must be made to determine whether a patent should be sought.

CMDA has extensive experience in all aspects of patent law as well as in assisting its clients to navigate through the intersections of business and legal issues. We can work with your business to determine whether seeking patent protection is a worthwhile investment.

Michael Cummings is an attorney in our New York office where he leads the Firm’s intellectual property litigation practice. He provides cost-efficient representation, focusing on clients’ business interests and using technology and appropriate staffing to litigate effectively while driving down costs. Mr. Cummings has over 20 years of experience litigating patent and intellectual property cases in U.S. District Courts throughout the country, including appeals to the Federal Circuit Court and investigations in the U.S. International Trade Commission.

He has successfully represented numerous Fortune 100 companies. His cases have involved patents in the areas of computer hardware, software, telecommunications, consumer electronics, semiconductor design and manufacture, standards, microprocessor design, e-commerce, electro-mechanical controls, lasers, optics and storage technology. He may be reached at (212) 547-8810 or mcummings@cmda-law.com.