One of the many myths that we hear is that a patent is worthless if the owner does not have the funds to enforce the patent in court, i.e. litigate. In many cases, we work with small businesses and start-ups that simply are not in a position to litigate, but still get a lot of value from their patent. And I am not talking about the feeling you get by hanging a patent deed framed on your office wall.
Most contentious matters never make it to court
What most people do not realise, is that patent litigation is rare, and even very contentious matters are often settled out of court.
Typically, patent disputes are resolved through negotiation. The patent owner will inform the infringing party of their patent rights, and initially seek for that party to cease their infringement. It is common for disputes to end at this stage.
Even when the circumstances are disputed (e.g. validity of the patent is challenged), resolution may still be reached through negotiation, particularly if the patentee is somewhat flexible in their strategy. It may be desirable to provide a limited license to the infringer in return for royalties, rather than seeking that they cease infringing. In short, the outcome of such negotiations is in many ways only limited by your imagination.
In any event, if negotiation isn’t successful, mediation (or other alternative dispute resolution process) can be a good alternative to jumping into litigation.
Your patent may be sold or licensed to another party
Patent rights are transferable, much like any other property. As such, a patent can be sold and licensed to other parties, even if you do not practice the patent yourself.
As such, a patent (or patent application) can have value to the owner, even if the patented technology is never actually used by the patent owner.
Furthermore, as a patent may change hands, it may ultimately be enforced by someone else than the original owner/inventor.
Deterrent
We suggest that you mark your technology with “patent pending” or “patented” (as appropriate). As such, anyone presented with your technology is immediately met with a deterrent in the form of a warning.
In many cases, it is much easier to stop something from happening, than stopping something that has already started. As such, the deterrent effect of a patent or patent application may actually have more value than the stick that enforcement provides.
Furthermore, a patent application can act as a deterrent before it is even granted. As such, a patent application may provide a lot of value to a business without it ever necessarily being granted.
A patent is a valuable marketing tool
Finally, one often overlooked aspect of patent protection is that a patent can be a great marketing tool.
We suggest that you actively market your technology as “patent pending” or “patented” (if appropriated). This can help emphasise that you are offering a unique and innovative product.
Take home
Courts are often the last place a patent has value, which is apparent by the small amount of patent litigation, both in Australia and overseas.
Patent applications can have a lot of value right from day one, even though technically they cannot be enforced in court until they are granted. As such, remember to look outside of the box when considering patent protection.