Do you really need a patent?

At this point, you probably know why a patent can be useful (see our article “Why patent?”) and what can be patented (see our article “What can you patent?”).

But do you really need a patent? It is probably weird to hear this from a patent attorney, but the most effective way to protect ideas is to keep them as a secret. 

If you file a patent application, your invention will not be secret anymore, since each patent application that is alive after 18 months of filing gets published. You must disclose your invention in the patent application in a way that it can be carried out. So, you cannot file a patent application and keep the invention secret at the same time. It just does not work like that. You get an exclusive right in exchange for disclosing a valuable invention that can contribute to the development of our world. 

So, it seems like keeping your invention a secret and patenting are two very different routes. 

As previously mentioned, the most effective way to protect ideas is to keep them as a secret, also called as trade secret. However, if you have any colleagues, employees or investors, contractors, keeping something a secret is not really feasible, or requires tremendous amount of energy and caution. A famous example of trade secret is the recipe of Coca-Cola. However, when KFC tried to do the same with their recipe, it was stolen and got published without any protection on it. 

So, as you can see, patents and other IP rights can be highly valuable for some companies. But let's see if there is value in it for you or not. Obviously, there is no simple "yes" or "no" answer, but we made an effort to write a huge amount of thought provoking questions to help you decide.

Whether you really need a patent will depend on your: 

• Invention

• Is your invention easy to understand, simple to copy? Is it quick to disassemble?

• Is your invention fast to manufacture or does it take years?

• Do people need your product? Are enough people interested in buying it, i.e. is the market big enough to make a profitable business?

• Does it have significant commercial potential?

• What is the best market for your product? Is that market easy to enter? Does that market have strong or weak competitors?

• Is your target market growing or shrinking?

• Does your invention have a short or long product life cycle?

• Technical field

• Do the competitors in your market own patents?

• Is it a fast-moving field?

• Business strategy

• What is your business? 

• Are you capable and ready for the challenge of turning your idea into a business opportunity?

• Does a ~4-year-long patenting process fit into your business plan?

• For what strategic reason do you want to have a patent? Some of the reasons may be: making more money, selling more products, protecting your own business, licensing, increasing the value of the company, annoying competitors, etc.

• What is the most profitable part of your business? Could you make money from your patent?

• Do you need other IP rights, such as designs and trademarks as well?

• Budget

• Have you studied the total cost of patenting? Is your invention likely to earn enough income to justify the cost?

• Do you have resources for paying a patent attorney to assist you?

• Do you have resources for maintaining your patent?

• Do you have resources for monitoring your competitors, potential infringers?

• Do you have resources for actually enforcing your rights?

• Customers

• What countries do your customers come from? 

• Do your customers see value in patents? Will they value your business more if you own patents?

• Can or will your customers pay a higher price for your product because it is patented?

• At what price can you sell your product?

The above questions will also help when deciding where to file your patent application, but we will get back to that later, in article “Where to file?”.

A few of the above questions come from the EPO's Inventor's handbook, which is quite helpful for inventors: https://www.epo.org/learning/materials/inventors-handbook.html

It follows from the above that you probably should not patent,

• if your invention can easily be kept a secret (e.g. cannot be disassembled easily),

• if you do not want your invention to ever be disclosed,

• if you have very few potential customers,

• if you do not have the resources to pay a patent attorney, maintain your patent, 

• if you do not have the resources to enforce your rights (your patent protection is limited to the extent that you can and decide to enforce it),

• if you cannot make reasonable profit from your patented product/process (and the costs of patenting cannot be justified), or

• if the invention has very short life cycle.

You might ask what happens if you do not patent. There are risks, of course, and competitors will probably take advantage of your invention. If you do not own a patent, you will not be able to make money from your new product, and others may use, sell, produce it freely, without having to pay you.

Author: Zsofia Pintz
Published: August 2020
Updated: July 2023