IP and Small Business

On a vehicle forum a frequent commenter started a thread to complain that someone was selling a small piece of specialty hardware that seemed to be the same as an item already made and sold by another forum member. The air quickly grew heavy with the reek of righteous grievance. Along with condemnations slung freely with no proofs, there were of course casual suggestions that the allegedly rightful originator of this very simple item (I would personally hesitate to call it an invention) should have simply patented it. And of course many misconceptions regarding the underlying purpose, ease of acquisition, and practical usefulness of patents were expressed in abundance. The following is a comment I added to correct some of the misunderstandings, and to share my own point of view on intellectual property in business vis a vis the nature of business itself.

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Naturally the thread was shortly thereafter driven right off the rails by the aggrieved party. Or so it was reported to me privately by the moderator. I assume much of the vitriol was directed at me, but I don’t know since I didn’t revisit it before she had to delete the whole thing, it got so ugly. But I cadged a copy of my remarks to share with you here:

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US patent grants a right for 20 years, if you maintain it (there are substantial ongoing, periodic fees). The term starts on the application date, so since it normally takes 1-2 years to get approval, that time is deducted from the effective duration (mine was granted in about 18 months, which is pretty average; my cost was also pretty average, about $6500 as a micro-entity).

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People mostly misunderstand the actual purpose of patents. It isn’t to protect the inventor, it’s to grow the body of public knowledge in order to strengthen the country and its economy in the world of accelerating technological and artistic progress the framers accurately foresaw. The US Constitution clearly states the purpose in Art 1, Sec. 8, Par. 8:

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“The Congress shall have Power… to promote the Progress of Science and useful Arts,…”

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and how that will be effected:

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“…by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;…”

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It’s a deal you make with the gov’t: The exclusive right is of limited time and in return for that right the patent application is published in the patent library, not when it runs out, but when the patent is granted. The entire purpose is to increase the store of knowledge in the society (the USPTO patent library is the largest publicly searchable database in the world). Offering a time-limited, legally defensible right is the bait to get you to let the gov’t publish everything that makes the idea qualify for grant of that right: that it is novel, useful, and non-obvious.

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If you want to keep your invention and whatever useful information it embodies secret, you don’t patent it, you simply keep it secret. But if you develop your invention into a product and sell it, obviously that’s going to be hard to do.

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So, you can patent your invention, and for maybe 18 or 19 years you have a legally defensible right against copycats, that right being only as protective as your ability to defend it. The copycats can learn all about your invention, but you can legally challenge them if they copy and market it.

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After the term of the right anyone and everyone is free to copy and sell your idea to their heart’s content. Hopefully by that time you have established a favorable position in the market to be able to withstand competition and retain your market share. So, obviously, if you suck at business, you won’t be any better off having a patent as not.

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If you don’t patent your invention, then everyone is free to copy and sell your idea to their heart’s content from the day they lay eyes on it. Complaining someone did is the definition of lame, you might as well complain someone else is eating in the same restaurant.

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If you don’t want people profiting off your work, then don’t go into business, because to succeed, you’re going to need to do a lot more than develop an idea. That’s the fun and easy part anyway. You’re going to have to be a better businessman than your potential competitors, which is very very hard, and even if you work very hard, they might work even harder. Ideas alone have little value, lots of people have the same idea if a need or opportunity presents itself, any problem you might define only has a tiny number of viable solutions anyway. To flatter yourself that you’re the only one to think of a thing is the height of arrogance. You’re not a genius, if that means some standout intelligence or creative drive, by that measure genius is quite common. What’s not is the willingness to work hard to turn your ideas into a successful business; I know because I suck at that part, I just wanna do ideas and design shit all day long.

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Whining that there should be honor among thieves is sour grapes, no matter how boutique the market. If you get pissed someone copied you, it’s not their fault, it’s yours, you suck at business and someone else is willing to work harder. You know they’re working harder because they’re taking your market from you. So, back to work!

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