A patent is an exclusive right granted by the government in exchange for public disclosure of an invention. The claims of a patent provide a legal definition of what the patent owner can prevent others from making, using or selling. Patents have a 20-year term starting on the filing date. This term can be extended if there are excessive delays by the patent office in examining the patent or delays by the FDA in approving a drug claimed by the patent.
Patent prosecution is the process of preparing a patent and responding to rejections from the patent office. Prosecution is expensive and time-consuming, and it exposes your ideas to competitors. The fees from your attorney and the patent office will total tens of thousands of dollars, and it usually takes 3-5 years from the filing date before a patent is granted. Before starting on this adventure, you should be confident that your invention is valuable and patentable. You should also consider whether the invention might be better protected as a trade secret.
A trade secret is confidential information that provides a business advantage. Trade secrets never expire so long as they’re maintained in confidence. However, you can’t rely on trade secrets if you plan to publicize the nuts and bolts of your invention. Trade secret protection will also be ineffective if your product can be reverse engineered.
You should also consider whether your patent or trade secret will be enforceable. For a patent, you must prove that the accused infringer practices every element of the patent claim. A competitor who designs around your claims will not be liable for infringement. For trade secrets, you need to prove that a competitor had illegitimate access to your secrets and could not have recreated your IP from publicly available information.
Litigation is an order of magnitude more expensive than patent prosecution. This can be a huge burden for a small business, especially when they accuse a competitor with deep pockets who can use delaying tactics to wear you down. The patent owner must prove infringement of every element of a patent claim in court and defend the validity of the claims for a second time against a more aggressive challenge.
If you win, the judge may issue an injunction that prevents future infringement. Injunctions are usually granted in patent litigation over an FDA regulated drug. For other patents, the remedy for infringement might be limited to what the infringer would have paid as a royalty. This may seem inadequate compared to damage caused by infringement and the cost of litigation.
