from The University of Texas Libraries

Patent Myths

Patents are valuable – is false because patents only have commercial value if they can be used to protect a profit stream by excluding others from making, using or selling whatever is covered by the patent’s claims. In fact many of those who study patents are fairly certain that less than 2% make any money for anybody.

A patent means the invention works as verified by the government – is false because the government does not get involved in testing inventions to see if they work. In fact US Patent and Trademark Office (PTO) auditors believe that as many as 10% of all issued patents are invalid – a high percent of those due to the fact the invention does not work.

You can get a Provisional Patent that is good for 1 year – is false because there is no such thing as a Provisional Patent. What you can do is file a Provisional Application for Patent, the current Small Entity fee is $75, that will provide a date of priority placeholder for you. If you fail to file the full application within 1 year you lose your priority date and may stand to lose substantial other rights as well depending on what you did during that year.

A Provisional Application for Patent just needs to describe the idea – is false because the Provisional Application for Patent must meet exactly the same criteria for full disclosure and providing enabling information to one skilled in the art as the full Patent Application. The Provisional Application does not require the formal structure, the disclosure of prior art, or the claims of the full application and can use less formal drawings.

You can get a patent for an idea – is false because you cannot get a patent far an idea or mere suggestion. Patents are granted to people who (claim to) “invent or discover any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof” to quote the essence of the US statute governing patents. Complete and enabling disclosure is also required.

A patent can be enforced for 20 years – is false because a patent can only be enforced from the time it issues till it expires. New rules provide some guarantee that the enforceable term of a utility patent will be at least 17 years and that some royalties may be collectable when a patent is published before it issues. Design patents are only good for 14 years and only cover the ornamental appearance of the item and not its structure or functionality.

A patent gives the owner the exclusive right to make, use, and sell their invention – is false because a patent only give its owner the right to EXCLUDE others from making, using, and selling exactly what is covered by their patent claims. A holder of a prior patent with broader claims may prevent the inventor whose patent has narrower claims from using the inventor’s own patent. A patent right is exclusory only.

A US patent is honored world wide – is false because a US patent is only enforceable in the US. It can be used to stop others from importing what is covered by the patent into the US but other people in other countries are free to make, use, and sell the invention anywhere else in the world that the inventor does not also have a patent.

A patent protects and invention – is false because only a patent in conjunction with a legal opinion of infringement will give the owner(s) of the patent the right to sue in a civil case against the alleged infringer. The US Government does not enforce patents (however, the Customs Service can help block infringing imports) and infringement of a patent is not a crime. The responsibility, and all expenses, for enforcing the rights granted by a patent (and securing Customs Service help) lie with the patent owner(s).

The first thing you need to do after having an invention idea is get a patent – is false because there are other, much less expensive, steps you can take to maintain your US and international patenting rights with very little risk. When properly used, the US PTO Disclosure Document Program ($10), non-Disclosure Agreements (Free), and Provisional Applications for Patent ($75) along with maintaining good records and diligent pursuit can keep your patenting rights intact until you do, as a timely business decision, spend the $5,000 to $10,000 it typically takes to get a patent.

A patent attorney has to write and file your patent application – is false because you can write and file your own patent application pro se or you can also have a patent agent write and file your application. A patent attorney is both an attorney and a patent agent. A patent agent can be anyone with sufficient scientific or technical knowledge and who has passed a patent practitioner test administered by the US PTO.

It is very hard to learn how to write your own patent application – is false because many people no smarter than you do it every year. It does take some study and time (reading Patent It Yourself by David Pressman, among other things, is highly recommended) and it is also a very good idea to pay a patent practitioner to review and make suggestions on your application – several times if necessary – before you submit it.

*The information on this page is used courtesy of James E. White, inventor and author of “Will It Sell?…”