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Applying for a patent on product? Think twice in these cases! | EP&C

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There are certain benefits to patenting an invention, such as sidelining competitors because you get a (temporary) monopoly in your market. However there are also situations in which applying for a patent on product X or Y is not really recommended.

A patent is a means to an end and not an end in itself. If a patent contributes to the realisation of your business strategy, then there is absolutely no reason to doubt.

However, if one of the following situations applies in your case, you should perhaps think twice.

1, You do not or cannot enforce

If you have a patent you will need to enforce it yourself. Unfortunately, there is no such thing as a patent police. If you fail to do this, it will be like investing in a magnificent racing horse and then leaving the gate to the paddock wide open, although horse thieves are more active in some markets than others.

In the pharmaceutical industry, for instance, where the stakes are high and huge amounts of money are involved, you are in the hands of the gods if you fail to enforce. Your head start is worth its weight in gold. The question is not if your competitors will infringe, but when. You will therefore need to be prepared to act.

2. Alternatives are available

Suppose you have invented a new suspension system. It works well, you are pleased with it and apply for a patent. However, there are 694 alternatives available on the market. What would make people want to buy your product? They will only do so if your product is better than the existing suspension systems.

There is a big chance that you will not earn back your investment.

3. It takes a long time to develop your product.

If you are going to market your product and it took you a long time to develop, the same will probably be true for your competitors. If you have a head start like this, that may be enough to gain a strong market position, particularly in the case of products that are likely to be a bit of hype. The last thing you want to do is to help your competitors’ progress by describing your invention in detail in a (public) patent application.

So maybe, don't do it!

Or should you apply for a patent after all?

Often the situation often is not that clear cut. In example 2 about 'available alternatives' there may be reasons why you should actually make an effort to apply for a patent. For instance for marketing purposes when it appears that a patented suspension system will boost your sales. Or if you want to use the innovation box to get a tax break.

The moral of the story

First of all think carefully about your business strategy and about what you want to achieve with your innovation. If the development of a patent portfolio fits within this strategy, it would be worthwhile applying for a patent.

Complicated? A patent attorney can provide you with tips at an early stage of a development process. He or she will ask you critical questions that will help you arrive at a suitable strategy.