If you create a product that sells, others will copy you.
If you’ve created a product that sells, congratulations are in order! That’s not easy to do. Now, because of your success, others want to copy, counterfeit and infringe. They want to profit from your hard work. This is the reality for inventors of popular products.
Inventors think, all i need is a patent! A patent solves all my problems. But that’s not correct. A patent gives you the right to sue for patent infringement — an expensive and time-consuming process where there are no guarantees and the odds are not in favor of the party with fewer resources. The inventors who are currently protesting the nomination of Congressman Darrell Issa to run a House Judiciary subcommittee overseeing intellectual property isn’t wrong to think the system isn’t treating them fairly.
But they are overly focused on the promise of patents – the American dream of being able to own and protect an invention. Chasing that dream has become very costly. So expensive, in fact, that most inventors can’t afford it. It’s no surprise that litigation financing for patent cases will likely continue to rise.
But even if laws change in Congress to make it easier for inventors to defend their intellectual property rights, protecting intellectual property won’t be enough to stop the copycats because patents are full of gray areas. I found that out firsthand when I sued one of the world’s largest toy manufacturers for patent infringement in 2003. After three long years, right and wrong played no part in our settlement. We were in a war of words.
Had this company infringed on my patent claims or just worked around it? Who would say? It was fair game on this company’s part to try to get around the claims in my patents, it dawned on me, because those claims would always be interpreted differently by different people at different times.
There was actually a word for it. Contest.
If you took emotion out of it, the decision to work around me was just business.
Of course, no inventor feels that way when it happens to them. If someone uses your invention without paying you royalties, it’s devastating and incomprehensible. You feel violated. Don’t they understand how hard you’ve worked? Don’t they know that theft is just wrong?
It’s a slippery slope. You can invent and develop something, but still not own it, depending on how the language and drawings in your patent are interpreted. When you go to court, you may win in the end… but you may also lose.
This is the reality and it is very disturbing for inventors.
There is a simple solution. Inventors should focus on protecting their creativity from a company point of view.
This isn’t easy, as the odds are stacked against the little guy. But it is possible. When you’re small you can be fast, and speed is a great superpower.
If you want to get paid for your creativity, the mindset you need is “How am I going to outsmart the competition every step of the way?”
That includes submitting transaction-ready intellectual property and planning ahead for copycats. If your product sells well, there is competition. Congratulations, you have just been scammed!
Many people find this discouraging. But from a business standpoint, this is actually good news. You should celebrate. Most ideas fail because they’re not marketable, remember?
Instead of complaining about the patent system, which is a waste of time and energy, or threatening to sue, inventors should consider the following business strategies to fend off competition.
Business strategies for inventors
How to protect your intellectual property from a business perspective.
1. Refuse to let your emotions get the better of you. Don’t threaten to sue anyone. Don’t give anyone a reason to report it review between parties (IPR) against your patent with the Patent Trial and Appeal Board at the USPTO.
2. Avoid license agreements that tie licensing to intellectual property. It is much better protection to license a product, not a specific patent. Lawyers want to link licensing to intellectual property, but that is negotiable. In short, you don’t want to give your licensee the option to cancel your license agreement in the event that your intellectual property is challenged.
3. Reduce your production costs. Are you manufacturing your product in the most efficient and cost-effective way? This allows you to compete on price. If possible, try to use a material or manufacturing process that is not easy to copy.
4. License to an industry leader. In today’s world, sell first and sell fast have great value. Make sure your licensee has a good distribution.
5. Consider sublicensing. Are there areas where your licensee is not selling? If so, consider sublicensing with other companies that do. Try to cover all potential distribution points.
6. Build strong relationships with all major retailers. Introduce yourself early and follow up often so they know your product is first and original. Be reasonable. This will help you avoid large retailers selling copycat products.
7. File provisional patent applications with workarounds and variations to help you establish alleged ownership. Beat others by trying to “steal your invention from yourself.” Incorporate your discoveries into your patent applications. They will help deter others from working around you.
8. Create market demand. When you bring market demand to the table, licensees are less likely to care about intellectual property. Create market demand by showing your invention to customers of the potential licensees.
9. Keep innovating to stay ahead of the competition. Look to the future and plan accordingly so you stay ahead.
10. Provide great customer service. Love your customers and treat them well. They will come to your aid when you need it. As Chris Meade, businesskinda.com 30 Under 30 co-founder of the game Crossnet, said, “They can steal your trademark, but they can’t steal your brand.” Your brand is the feeling you give people.
11. Obtain trademarks, copyrights and design patents. These are simple tools to help you stop online sellers that don’t require you to go to court.
12. Document your trip using social media. You are the first and the original, which is newsworthy. Use social media to let everyone know that you are the creator of this wonderful new product. You better fight in the court of public opinion.
13. License to a Famous Brand. Brand licenses are excellent protection for many reasons. It gives your products a very unique point of difference in the market. You also ultimately tap into the power of the brand’s legal team.
If you want to become financially successful as a creative person, you need to look at intellectual property protection from a business point of view.
Janice has been with businesskinda for 5 years, writing copy for client websites, blog posts, EDMs and other mediums to engage readers and encourage action. By collaborating with clients, our SEO manager and the wider businesskinda team, Janice seeks to understand an audience before creating memorable, persuasive copy.