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Wealth of Ideas, July 2004
It happens more often than you would think. An inventor
calls our office in the belief that his or her patent
is infringed and provides information on the patent,
the inventor’s own product, and the infringing
product. Then we have to break the news that not only
is the competitor not infringing the patent, but the
inventor’s own product isn’t even covered
by the patent! The inventor then has a worthless (or
nearly worthless) patent and a product with no patent
protection – and, thus, no way to protect his or
her market share from competitors.
How does this happen? Usually, the story goes like
this: the inventor files the patent application before
beginning production of the newly invented product.
When the invention goes into production, the inventor
implements various improvements and modifications, which
of course causes it to differ from what is claimed in
the patent application. So when the patent issues, it
does not cover the “patented” product.
This situation can be avoided, however, by approaching
the patenting process carefully. Consider potential
variations, modifications, and improvements and include
them in the patent application. Seek patent claims which
would cover these alternate embodiments of the invention.
Remember that patenting is an ongoing process and that
filing a continuation or a continuation-in-part, which
reflect subsequent improvements on the product, is part
of this process. And while we’ve said it before,
it bears repeating that “do-it-yourself” patents
often lose the inventor more money than they save; an
experienced patent attorney can often spot and correct
those claims that are unnecessarily narrow.
Although you do not need to patent your product in
order to sell it, if your patent does not cover your
own product, chances are it won’t cover your competitor’s
product either. So proceed with caution, seek a competent
patent attorney, and do all that you can to assure that
your patent covers the product you ultimately produce.
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