Posts Tagged ‘product’
Your company has developed a really nifty new product. Should you file for a patent, and should you trademark the product’s name? Like so many other things in life, business, marriage and sports, it depends.
Patent a New Product? First of all, you cannot actually “patent” a product or service. You can only patent the innovation that went into creating that product or service. Applying for and receiving a patent has several benefits. 1. Protection and Exclusivity: First and foremost, getting a patent for your invention prevents competitors from using it to create identical or similar products. For example, when Post-it® notes came out, 3M had patented the technology behind them, and that gave 3M a valuable monopoly for many years. Understand, however, that the US Patent Office issues patents; they do not enforce them. So if a company infringes on your patent, you will have to defend your patent through civil litigation. 2. Additional Revenue: You can license your patent to other businesses. While it probably does not make sense to license your patent to a direct competitor, you could license it to companies in other industries and create a nice revenue stream. If the product that uses the invention is not producing the desired sales or profits for your business, you could then license the patent – or even sell the patent – to generate revenue from it. 3. Better Safe than Sorry: If you do NOT apply for a patent, and two or three years later you discover that a company is using your innovation to produce a product or service, you may regret not patenting the technology when you had the opportunity to do so.
For the inventor or small business that owns a patent, and that patent is being infringed, there are limited options. First of all, there are no patent cops. The US Patent Office issues patents, they do not enforce them. It is the job of the patent owner to enforce his (or her or its) patent!
And unlike copyright infringement, which is a crime, patent infringement is a civil matter. The patent owner facing infringement of his patent by another business has just two choices:
1. Injunctive Relief: The patent owner can go to federal court and seek what’s called injunctive relief. The patent owner can ask the court to issue an order preventing the infringer from offering for sale the product that uses the infringed patent. If the product is produced outside of the US, the court can issue an order preventing the import and sale of the product in the US. However, a legal precedent has been established that only patent owners that “practice” their patent (that is, they use the patent to produce a product or service) can receive such injunctive relief. If the patent owner is what’s called an NPE (non-practicing entity), a person or business that owns a patent but does use that patent to produce a product or service, the only alternative is to sue for damages.
2. Sue for Damages: The second option is for the patent owner to sue the infringer for both past and future use of the patent. If the court finds that the patent was infringed, it will award the patent owner a settlement that compensates him (or her or it) for the past use of the patent as well as royalties on future sales of the product. Just as most lawsuits are settled out of court, it is likely that a patent infringement lawsuit will result in an out-of-court settlement, and the infringer will agree to license your patent and pay you a royalty. Forcing a patent infringer into a licensing agreement is known as “stick licensing” and the term comes from the “carrot and stick” analogy.