The most common misconceptions about patents

Many inventors we meet have unreal expectations what a patent will do for them. Sometimes, inventors believe that a single patent will skyrocket their profit. Unfortunately a huge number of patented inventions never actually make money. (Some articles mention 95%, but I have not found the original research backing this number.) You obviously cannot expect people to throw money at you just because you have a patent. 

Let’s see 8 very important facts about patents that people would like to think otherwise.

1. You cannot protect a general idea with a patent

   You cannot own an exclusive right over a broad concept. You need to figure out a concrete solution and describe the features, steps of it. An invention cannot be abstract.

   Let's say you invent wireless charging. You might be the first person who has ever thought of this. Unfortunately however, you cannot file a patent application saying that you claim wireless charging. (To put it more precisely: you can file a patent application about anything you want, but it will not get to grant.) If you decided to patent wireless charging, you have to figure out how it exactly works, what parts it needs, what each part is responsible for, etc. You can have more embodiments in your application, if it is the same invention with small differences. However, if someone invents another wireless charging method with different steps, or different parts, he will be able to patent it, even if the purpose of the invention is the same, and even if you were the first who thought of the general idea.
   

2. There is no worldwide patent

   Newspapers (even websites like Forbes) like to publish articles saying otherwise, but unfortunately they are wrong. Currently there is no international, universal patent. A patent protection gives you exclusive right, but this right is limited both in territory and time. Unfortunately, there is no unlimited right coming with being an inventor. As an inventor, you contribute your invention to the development of our world. In exchange, you obtain an exclusive right for a period of time (usually maximum 20 years) and thus can get paid. A patent is valid in the country where you applied for it, it is not possible to have a patent for the whole world with a single filing. Fortunately a few agreements have been created in the past in order to unburden inventors of having to file in too many countries at the same time. So, there is for example Eurasian Patent, European Patent and PCT, which all help reduce costs at the filing stage. You have to carefully create an IP strategy and decide where you want to apply for a patent. Read more about this here: “Where to file?”
   

3. A patent is not a guarantee that you can produce and sell your product

   This is a very important and often misunderstood point. Unfortunately, owning a patent does not entitle you to produce and sell your product. A granted patent is not equal to freedom to operate. A patent applicant (or patent proprietor) selling its own patented product may still be liable for infringing other patents, as you will see the next point with an example.
   

4. A patent is not a guarantee that you are not infringing someone else's patent

   Again, a very important and often forgotten fact. Even if you have a patent on your invention, you can still infringe someone else’s patent rights with your invention. The patent offices examine if your invention is novel and inventive, but even if your invention satisfies these requirements, and you get a patent, it can still happen that you infringe someone else’s patent.

   Let's see an example. The prior art (a.k.a. the most similar invention previously disclosed) is a simple, very basic chair with four legs, which is patented, the patent still being valid. Your application describes a chair with two armrests. Your invention (chair with two armrests) is new, since it is different from the prior art. In addition, your invention is found inventive, since the addition of the armrests is not obvious and solves a technical problem. However, the patent on the simple chair (without armrests) covers all chairs having four legs, so the scope of the claim also covers your chair. If you produce and sell your chair with the armrests without permission of the other patent proprietor, you could infringe. (You will only infringe if you commercialize your product in the same country where the other patent is maintained. Just by having a granted patent you are not infringing). Thus, you can only commercialize your product if you enter licensing agreements with the other patent proprietor, obtain a license and pay license fees.
   

5. A patent does not create market demand for your invention

   In my opinion, this is quite straightforward, but we still meet inventors who would like to think otherwise. Creating a product from a prototype, building a team and a profitable business, finding customers and selling the product are all much more difficult (and also more important) steps than getting a patent. Owning a patent is unfortunately not a guarantee that you will have customers and profit. (By the way, we would love if that were the case, imagine how many more clients we patent attorneys had!) You need to invent a product or process that people are willing to pay money to acquire or use.
   

6. Some patents are not worth anything

   A patent only protects the invention that is disclosed in the claims. Therefore, a patent is only valuable, if its claim describes the minimally required features, and not more.

   A claim is definitely the most important part of a patent application. It defines what you want and get protection for. If your claim says "A furniture having at least three legs.", and you actually get a patent, you will own an exclusive right (of course, only in certain countries, for a period of time) over all the furniture having 3, 4, 5, 6, etc. legs, no matter if it is a chair or a table or a bench, or if it is made of wood or steel. On the other hand, should you have a granted patent with the main claim saying "A chair made of wood, said chair having four legs, two armrests and a back.", you will not have protection on chairs that are not equipped with armrests. This is because you only applied for protection concerning chairs having two armrests. So, we cannot emphasize how important it is to have professionally drafted claims. Do not expect a broad protection if you have a very long claim listing too many features.
   

7. You cannot keep your invention a secret

   We mentioned this in my other articles, but it is important that we discuss it again. You cannot obtain a patent and keep your invention secret at the same time. Patents are granted by patent offices in exchange for a full disclosure of the invention. The details of a patent application, along with the description of the invention, the name and address of the applicant are published and made available to the public before the grant of the patent.
   Read about publication here.
   

8. A patent itself will not make you rich

   This point is one of the most important facts. Although it is similar to the point above (the fact that a patent does not create market demand), it is important to remember that a patent in itself is not a guarantee that you will have investors or customers, but is certainly a very good first step! Remember that IP is only one of several important aspects of innovation. Inventions often fail for reasons that have nothing to do with the patent.

I hope this article helped rather than disappointed. It is so important that you have no misconceptions about patents and only expect realistic outcome from the act of obtaining a patent.

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