A Better Mouse Trap: Patents and the Road to Riches

To paraphrase the famous quote of Ralph Waldo Emerson, if you build a better mouse-trap the world will make a path to your door. Inventors and entrepreneurs frequently take this quote all too literally, thinking that if they make a better product theirs will sell and make them rich beyond their wildest dreams.

There are, of course, many different reasons why building a better mouse-trap is only the first of many steps on the road to financial freedom. There is no guarantee of financial success given by any patent office in the world. This is true even if you have a strong patent that covers a great product that enjoys robust consumer demand.  Unfortunately, many inventors operate under the misunderstanding that getting a patent is like owning Boardwalk and Park Place in the popular board game “Monopoly.” The truth is that turning an invention into cash is much more complicated than simply placing hotels on Boardwalk and Park Place.  Yes, you must have a patent, but you need to treat inventing as a business.

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Among the many truths missed by most inventors and entrepreneurs is the fact that it is frequently better to have a weak patent and the financial ability to enforce the patent than it is to have a strong patent and no ability to enforce the patent. In the United States, for example, a 2003 survey of the American Intellectual Property Lawyers Association finds that the average cost of bringing a patent litigation is almost $2 million. How then is the individual inventor or small business owner supposed to be able to meaningfully exploit the rewards offered by the patent system? The answer is that the small players in the game of “patentopoly” frequently see their inventions infringed and find no real recourse available because they cannot afford to even consider undertaking the financial burden that is a patent litigation.

Increasingly inventors and small businesses are seeking representation in patent litigation on a contingency basis. While still relatively rare, more firms seem to be at least considering such representation, including a new advertiser to IPWatchdog.com — IP-Contingency-Lawyer.com, which is the website of Attorney Tara Williams from the Law Offices of James Scott Farrin.  Of course, in order to justify the investment of time and energy, lawyers who undertake such contingency representation must only take those cases where there are strong facts, a solid patent and an infringer who can afford to pay patent damages.  The rise of contingency representation in patent litigation is becoming the great equalizer, and does provide independent inventors and small businesses with a powerful option to enforce their patent rights.  If you have a patent and believe it is being infringed you should at least talk to someone like Attorney Williams to see if you do have a case.  Having patent litigators on your side who get paid only if you prevail makes for a very formidable team behind you.

Another mistake many inventors make is in believing that just because an inventor has been granted a patent does not mean that there will be a market for the patent product.  This is similar in ways to the believe that a patent creates a monopoly, which was discussed briefly above.  The truth is that without a market there can be no monopoly, and without a market or reasonable expectation that market demand can be created it probably doesn’t make sense to proceed from the invention stage into the patent process.

The patent only gives the patent owner the right to exclude others from making, using, selling and importing. A patent carries with it no expectation for market success. Granted, if the product does have a market a patent can be a significant barrier to entry that insulates the patent owner from competition, but a patent in and of itself does not guarantee business success. A patent only dangles the opportunity to achieve monopoly profits. This is due to the exclusive nature of the right and the ability to be the only player in the market. Again, a market is necessary, which means a product that people are willing to pay for is a pre-requisite. In the absence of a product that people want, and the business acument to capitalize on a market opportunity, a patent will not result in riches.