What are the pros and cons of patent protection?

Seeking patent protection can offer certain advantages and disadvantages to a patent applicant. These advantages and disadvantages should be carefully considered with licensed patent counsel in view of the specific goals of the applicant.

Advantages of seeking patent protection can include:

• Filing a patent application can evidence that an inventor had possession of a certain invention by the application filing date. If the invention is to be disclosed to a potential investor or other third party, filing a patent application before the first disclosure of the invention may help deter the third party from misappropriating the invention or from filing its own patent application.
• Filing a patent application also can help show potential investors that a company is serious about developing and monetizing the invention, and the patent application can become a valuable asset of the company.
• A product that incorporates the patented invention can be marked as “patent pending” once a patent application is filed.
• An issued patent can enable the patent owner to prevent others from making, using, offering to sell, selling or importing the patented invention for the term of the patent. The term of a utility patent currently is twenty years from the earliest filing date; whereas the term of a design patent currently is fifteen years from the patent issue date.
• The patent owner can sell or license patent rights, in whole or in part.
• An issued patent can enable the patent owner to charge a premium for a product that incorporates the patented invention and to restrict similar competing products.
• If sued for infringement of a competitor’s patent, the patent owner may be able to crossclaim that the competitor infringes the patent of the patent owner.

Disadvantages of seeking patent protection can include:

• Pursuing patent protection can take a long time and can be expensive. Some patent offices can take years after filing to initiate substantive examination of a new patent application, and, despite the time and expense, there is no guarantee that any patent ultimately will be granted.
• Pursuing patent protection also requires that an invention be disclosed in detail. The invention details thus will be publicly known once the patent filing is published and regardless of whether any patent is issued.
• Enforceable patent rights vest only after issuance of a patent and are enforceable for a limited time. The term of a utility patent currently is twenty years from the earliest filing date; whereas the term of a design patent currently is fifteen years from the patent issue date.
• Issued patents (and pending patent applications before some patent offices) are subject to periodic maintenance fees and other annuities.
• Patent grants are country-specific such that the patent process and expenses discussed above can apply to each country for which patent protection is to be sought.
• Competitors can try to work around the claims of an issued patent in an effort to make, use, offer to sell, sell or import a competing similar product.
• Enforcing a patent can be expensive and time consuming.

Related FAQs

• What are some key steps I can take to protect company intellectual property during the early stages of my company's lifecycle?