Blog | By not patenting you relinquish control | EP&C Patent Attorneys
"My plastic scanner is open source. I don't want to mess about with patents" was the headline of a recent article in Delta, the magazine published by Delft University of Technology. It did give my patent-focused brain some food for thought. Jerry Vos invented a scanner that makes it easier to recycle plastic. The decision not to patent the scanner is a noble one. That way, anyone can get to work with it. But that is precisely the problem.
The innovative Vos even goes a step further: "I would love it if other engineers also started working on it and I could see the scanner for sale on AliExpress five years from now. I fully understand that keeping an invention open source, i.e. accessible to everyone, has many advantages from an idealistic point of view. Other experts can develop it further and so together you can help to make the world a better place.
However, it is precisely on platforms like AliExpress that many copycats are active. They do not always take the quality of their products very seriously. For your average product like a frying pan that turns out not be non-stick or a cardigan that does not live up to its claims, this is not such a big deal. But for products, like the scanner, that want to make an impact in the field of sustainability, it can be a really big deal.
If your reason for not patenting is not necessarily an idealistic one you should keep in mind that by not patenting you are relinquishing control. Without a patent, it is not easy to get copycats removed from sites like AliExpress. All your hard work can be undone if worse versions of your product become available.
One possible side effect of relinquishing control is that the image of your product could potentially get damaged for example, if others come along who do not make your product according to your standards or quality requirements. If you subsequently want to engage in talks with investors this will simply become a lot more difficult because of the product's image. There may even be some bad reviews in circulation, making consumers less keen as well.
Your own innovation snatched away
Another reason to consider patenting while keeping your knowledge accessible to others is further development. Let's just continue to focus on the plastic scanner for now. Suppose a bright engineer comes along and improves and further develops this scanner. That is exactly what Jerry Vos wants; after all, two heads are better than one and that is how we can get one step closer to solving the problem of plastic pollution. So far, so good. That is until this engineer applies for a patent on his or her improved scanner. Should the inventor want to do so, her or she could even stop you from manufacturing the scanner you actually invented yourself. That is why open source could prove to be counterproductive.
So what's the solution? Don't enforce
So should you always apply for a patent and keep something that makes the world a better place to yourself? No, there is a simple solution. File a patent application, but do not enforce your rights in the case of infringements. So if someone comes along who wants to copy your product, they can do so. But when you have a patent, it is up to you to decide who is and who is not allowed to do so.
I can hear you think: but then it will take time for me to figure that out. And patents cost money. That is absolutely true. What you could do, therefore, is to allow interested parties that you approve of to acquire a licence. You could charge them a small fee that is enough to cover the costs of the patent and your time.
Let this example challenge you to look at a patent differently. Yes, you can make money from your invention. You can apply for a patent to become a market leader. However if you have other motives, patenting can still be advisable: you retain control, are able to influence the product's image and can still share your knowledge.
If you want to know more about patents, please feel free to contact me.