IP Protection

Once you have thought of this brilliant new idea, and are committed to developing it into a product, how do you stop someone else copying it, thus eroding your hard earned advantage? If it is easy to “hide” the invention in the product (maybe it is embedded in executable code in the controller), or is very hard to reverse engineer, or you can stay a step ahead of the competition then maybe you have the answer. However, those instances are rare, so the only real alternative is to play the patent game. And it is a game. A lot like Roulette: the house has the advantage but sometimes you win. The rules are something like: 

  1. Search around using fairly inadequate means (and/or get a patent attorney to help with his marginally less useless but very expensive means) to see if your idea is indeed new.    
  2. If you don’t find “prior art” engage a patent attorney at not inconsiderable expense to transcribe your description of the invention into a full and complete disclosure suitable for a patent application (or try to do it yourself if you are brave) and lodge it with the patent office.  That gets you “provisional” patent protection and a priority date – the date you officially staked your claim. 
  3. Be prepared to find more cash to lodge your final specification in full patent legalese (don’t try this yourself) 12 months later, with carefully crafted "claims” (sudden death if you get this wrong).
  4. Pay more money to get it through patent examination in your nominated countries where you want to protect your rights to have a monopoly on your idea for 20 years. 
  5. Be prepared for some clever patent examiner (usually not in Australia…) to find that prior art that blows you out of the water. 
  6. If your patent is granted pay more money on an ongoing basis, all the time knowing that you really still have nothing, except maybe an incentive for smaller players to refrain from copying, until the patent is challenged in court (or you sue an infringer) and win.   

The all -up cost? About $100k for a patent covering a few key countries. And that’s before any legal fees if you are challenged or need to sue. And keep in mind that a complex product may need many patents.

A key rule:  If you think your patent attorney is not on the ball, he probably isn’t. Don’t be slow to shop around. There are lots of examples where the patent attorney snatches defeat from the jaws of victory with a drafting error that surfaces when you are slugging it out in court in a patent dispute.

And then there’s Registered Designs. If you invent a distinctive look, taste, smell or sound for your product, you can protect it by “registering” it. That’s why Pepsi can’t use a bottle that looks like a Coke bottle. And why Apple Macs can’t use the same sounds that Windows does. These don’t cost as much, but are more limited in their application.