How To Protect An Idea

Over 97% of Patents Are Worthless! Protect Your Invention Before It’s Too Late! It happened again. A small business owner asked what I do. I responded that I am a patent attorney. I help inventors protect their inventions. The man filled with fury. He said, “Well, then I need to talk with you! I paid a lot of money to get a patent on one of my products and now someone else is making it! I can’t believe that they can change one little thing, and now my patent doesn’t protect me!” I gave him my card. I hope it’s not too late. This situation happens way too often. Read on to make sure that it doesn’t happen to you. Most people, even inventors, scientists, engineers, professors, doctors, and business professionals, know little or nothing about patents or patent law. What typically happens is that inventors, entrepreneurs, and small businesses run to the largest law firm that they can find. They think that a big name automatically means big quality. Does Taco Bell mean quality Mexican food?! Large law firms are billing machines. They place enormous pressure on partners and associates to crank out billable hours. To maximize profits, the…

Nothing Will Save You More Research Time And Money Than Understanding Patents! A friend of mine was sitting in his first meeting at a major chemical company listening to a group of chemists discussing a challenge they were facing. It was going badly. Management had assigned them the critical task of making a molecule. But during their research, the chemists found a U.S. patent that discussed several ways to make the molecule. The chemists kept pouring over the patent again and again, but the patent discussed every possible way to make the molecule. They had spent several months trying to find other ways to make it. None of them worked. What confused my friend was that they kept talking about the experimental and discussion sections of the patent. He couldn’t figure out why they weren’t talking about the claims. THEN IT HIT HIM. They had no idea which section of the patent was legally enforceable. And when he looked at the claims, he realized that the claims weren’t even related to the molecule or the method of making it. They had been free to make molecule the entire time. This is the second post in my series entitled “How To…

How Do I Read Patent Claims? During the Protestant Reformation, Martin Luther supposedly met with the protestant leaders at Marburg to determine if they could reconcile their differences and unite into a single protestant church. The stakes couldn’t have been higher! They agreed on every point... except for one. Martin interpreted the biblical phase “this is my body” to literally mean that the bread of communion became the flesh of Jesus Christ. However, the protestant leaders interpreted the phrase to be symbolic. To their way of thinking, it couldn’t be taken literally. There was no apparent physical change or scientific explanation for that statement. Taken in context, Jesus must have meant it symbolically. The protestant leaders argued this point again and again. Martin got so angry that he pulled out a knife and carved the phrase “this is my body” into the wood of the table. Every time the other side would try to argue this point, Martin would just angrily point to the words without further comment. Martin would not budge. The Lutheran church was born. Claim Fundamentalism This story may seem like a strange one for a patent law blog, but it always comes to mind when I…

This is the fourth post in my “How To Protect An Idea: A Guide For Scientists, Engineers, Inventors, And Business Leaders To Understand Patent Claims” series. If you read my second post, then you know that only the claims section of issued patents can be used to sue your competitors for patent infringement. If you read the third post, then you have a few tips for reading patent claims. The post discusses three special types of claim that are very common. What is a Markush Claim? A square sandwich for satisfying hunger comprising: a first piece of white bread and a second piece of white bread; a peanut butter layer; and a jelly layer, wherein the jelly layer contains a plant material selected from the group consisting of a grape, a strawberry, a raspberry, a blackberry, and a cherry, wherein the peanut butter layer and the jelly layer are located between the first piece of white bread and the second piece of white bread. A peanut butter and jelly sandwich containing grape jelly would likely infringe this claim because a grape is one of the plant materials listed. Markush groups are not open ended. If you can think of any…

This is my fifth post in my series “How To Protect An Idea: A Guide For Scientists, Engineers, Inventors, And Business Leaders To Understand Patent Claims.” If you read my second post, then you know that only the claim section of issued patents can be used to sue for patent infringement. If you read the third post, then you have a few tips for reading patent claims. Will My Patent Claims Protect My Product? There is no way to know for sure if the claims that you draft to protect your innovation will actually do so. For example, the claims that you file in a patent application can be thought of as a starting point for negotiations with the U.S. Patent and Trademark Office (USPTO). As part of this negotiation, the USPTO may require that claims be amended in a way that reduces the breath of the original claims. Also, the body of patent law is constantly evolving, which can change the way that the claims are interpreted by the courts. That being said, product claims are usually considered much stronger than process claims. One reason is that an infringing product is easier to detect when a competitor offers it…

How I Discovered Patents! After I finished college, I was hired as a synthetic chemist by a medical device startup that was interested in making novel materials. This was my first week at my first job as a chemist. My first assignment was to research a way to make a target molecule. Wanting to impress, I diligently searched the literature for the best possible route. I found the perfect reference! I found a patent that made the exact molecule that we wanted to make and with a very impressive yield! This discovery was long before I got my Ph.D. in chemistry or my degree from law school. I didn’t even know what a patent was! My boss said that he was glad that I found that patent. It showed that I am a good researcher. However, that patent was owned our competitors. However, the patent couldn’t stop us from making the molecule itself, it could only stop us from using their method of making the molecule. When I asked why we didn’t just license the patent, he said that they had thought about licensing it. But they realized that it would be less expensive to hire a synthetic chemist to…

Invest Time In Your Patents! A CEO of a biotech startup was telling me that he is really happy with his current patent attorney. I was struck by his enthusiasm! What has this patent attorney done to deserve such loyalty? When I asked why he was happy, his response was that his patent attorney is really good at delivering the finished patent application with minimal input from the inventors. They send the patent attorney an invention disclosure. They receive a finished patent application ready for approval from the inventors. His words sent chills up my spine! That’s like being thrilled with a surgical consultation because the surgeon got you out quickly and didn’t ask a lot of probing questions! The surgeon may have saved you time, but shouldn’t you be more concerned about the success of the surgery?! Knowing what I know about patent claims, I wondered if there is any chance that his claims will protect his invention. Knowing what I know about startups, I wondered if his company will be around in a few years. This is the seventh post in my series “How To Protect An Idea: A Guide For Scientists, Engineers, Inventors, And Business Leaders To…

This is the last post in my series “How To Protect An Idea: A Guide For Scientists, Engineers, Inventors, And Business Leaders To Understand Patent Claims.” Thank you for taking the time to read my suggestions for how to understand patent claims. I hope you found these suggestions helpful. Here is a quick summary. Patents Only Protect Your Invention In Their Country of Origin. Only Issued Patents Can Be Used To Sue A Competitor. Only The Claims Of A Patent Protect Your Invention. Claims Are Usually Open-Ended: Make Sure That Your Claims Only Recite Essential Aspects Of Your Innovation. Patent Attorneys Are Claims Fundamentalists: Make Sure That Every Word Is Necessary And Not Overly Limiting. Challenge Every Word! Try To Envision All Variations Of Your Innovation And Ask Your Patent Attorney If Your Claim Will Cover That Variation. Find The Bottlenecks Created By Science, Your Application, Or Regulations, And Claim Them. It is up to you to make sure that your patent is valuable. No one will care more about your invention or your business than you do. If your patent attorney can’t find the time to help you prevent design around, you need to find another attorney. Thank you…